Unless the Supreme Court of the United States (SCOTUS) changes its calendar, we can expect to hear decisions on Hollingsworth v. Perry (Prop. 8) and United States v. Windsor (DOMA) today or Monday, so it seems a good time to do one last run through some of the language and scenarios.
“Changes their calendar?” Yes, SCOTUS can add days to the term on which they can issue opinions. They did this as recently as the Affordable Care Act case. Given the number of major opinions still to be announced, including affirmative action and the Voting Rights Act, many expect the court to add days next week or even later.
“But they have to decide, right?” Actually, no. They could push any of the cases until next term. Currently there is nothing, such as a request to re-argue a legal point, that suggests this will happen.
“DIG.” Dismissed as Improvidently Granted. Four justices have to agree to hear a case. In essence, a DIG is when the other five say, “We were right, we shouldn’t have heard this case.” Should SCOTUS “DIG” the Prop. 8 case most agree that the Ninth Circuit decision overturning Prop. 8 would stand. (No one is really talking about a DIG of DOMA.)
“Standing.” An escape hatch that applies to both cases, and means that no one had the right to appeal to SCOTUS, and possibly to lower courts. The U.S. and Windsor had conflicting positions until President Obama switched sides, so there was probably a legitimate appellate controversy over DOMA, at least for a while.
In the case of Prop. 8, things could get knocked all the way back to Judge Walker’s District Court decision. That may lead to a question of whether his decision was too broad, and should only have applied to the plaintiffs or certain clerks. Fortunately, at this point there may not be a way to challenge the breadth of Walker’s ruling because, wait for it, no one has standing. So a standing decision in either case is probably a partial victory of some sort.
“Equal Protection v. Federalism.” Particularly in the DOMA case, LGBT supporters would like a ruling that discrimination against same-sex couples is unconstitutional based on equal protection and perhaps subject to heightened scrutiny. While some of the liberal justices seemed to like that plan, Justice Kennedy seemed more interested in overturning DOMA as an overreach of federal power. If he agrees with overturning DOMA, but for a different reason, any points on equal protection would likely not have power as a precedent in other cases.
“Partial Victory.” On Prop. 8, simply affirming the Ninth Circuit decision would bring marriage back to California. Some legal gymnastics could also include states that recognize same-sex relationships in an almost equal way. Both scenarios leave most of the country alone. For DOMA, a partial victory could mean Edie Windsor gets her check, and others similarly situated have to file their own lawsuits with a good chance of victory.
“Total Victory.” Same-sex marriage is recognized by all states and the federal government. While most are predicting this won’t happen, there is a new optimistic buzz by analysts taking a second look at Justice Kennedy’s musings on gender discrimination. In short, if Roberta, but not Robert, can marry me, and the only difference between them is their gender, that’s gender discrimination. Some consider this argument attractive because it uses an existing legal framework, doesn’t create protections on the basis of sexual orientation, and puts the kibosh on slippery slope arguments about polygamy and weddings to plants.
“Prop. 8 Upheld.” Back to the ballot. Interestingly, I’m told it may be possible for a legislative supermajority to put marriage equality back on the ballot without needing signatures.
Cross your fingers!
