Recent moves and statements by the Department of Justice, LGBT advocates and the Supreme Court itself suggest that the court may delay decisions about whether to take cases involving the Defense of Marriage Act and Proposition 8 until after the November elections.
The moves could put off the moment when same-sex couples in California will know whether they are able to be married and delay when advocates know whether the court is going to make a final decision this term about DOMA's constitutionality — despite Justice Ruth Bader Ginsburg's suggestion that they likely will do so.
Several cases involving recognition of same-sex couples’ relationships initially had been scheduled to be considered at the Supreme Court’s first conference of the new term on Sept. 24, including the challenge to Proposition 8 and one of the challenges to DOMA’s federal definition of “marriage” and “spouse” as limited only to one man and one woman. But their consideration on Sept. 24 appears to be in doubt now.
On Sept. 19, the American Foundation for Equal Rights — which has brought the lawsuit challenging Proposition 8 — initially told reporters that the Supreme Court’s “media relations office publicly confirmed that the Prop. 8 case won't be considered on the 24th.” Less than an hour later, AFER issued a clarification, though not full retraction, stating, “As of this moment, the Court has NOT publicly confirmed that the Prop. 8 case will not be part of the 9/24 long conference.” AFER did not say that the case was expected to be considered on Sept. 24, however, and sources have confirmed to BuzzFeed that court officials have said it was not expected to be considered on Sept. 24. The Supreme Court’s public information office provided no confirmation of this, and the Supreme Court’s online docket still references the cases’ consideration on Sept. 24. Those familiar with Supreme Court practice, however, have noted that the website would not necessarily be updated to reflect such a change prior to the scheduled conference.
This matters because if the Supreme Court decides that it will not hear an appeal of the Proposition 8 case, Hollingsworth v. Perry, then the Ninth Circuit ruling striking down the law stands and that court will issue a mandate to the trial court putting its decision into effect. At that point, the final order enjoining enforcement of Proposition 8 would go into effect and same-sex couples would once again be allowed to marry in California, as was the case for several months prior to the November 2008 vote on Proposition 8.
If the court, when it considers the case at a conference, decides to hear the Proposition 8 appeal, then a briefing and argument schedule will be set that likely would lead to a decision by June 2013. Four justices must vote to take the case for the appeal to go forward.
The backers of Proposition 8 asked the court to reverse the decision of the Ninth Circuit striking down the law. That request — and the request from AFER’s lawyers that the court not hear the appeal — had been distributed to the justices on Sept. 5 for their review and consideration at the first conference of the term on Sept. 24. If the case has been removed from the Sept. 24 conference, however, that means that same-sex couples in California will be waiting at least until the court does decide to consider the case at a conference.
After Sept. 24, the court's next scheduled conference is Oct. 5. Legal advocates, however, have speculated — and the Proposition 8 case being removed from the Sept. 24 conference would lend credence to the idea — that the court will consider all of the cases related to same-sex couples’ relationship recognition together at one conference, which would include the cases challenging the Defense of Marriage Act.
If the court does consider all of those cases together, recent actions by the Department of Justice could put off a decision about Proposition 8 even further. On Sept. 11, DOJ filed two petitions for review in DOMA challenges — one in Edith Windsor’s challenge brought by the American Civil Liberties Union and one in the Pedersen case brought by Gay & Lesbian Advocates & Defenders. Even though the ACLU and GLAD already had requested Supreme Court review of those case, the DOJ filings mean that the House Republican leaders who have been defending DOMA in court would have had until October 11 to respond to DOJ’s filings. The court already has extended that deadline until Oct. 19. The petitions and responses in those cases would then be distributed “no less than 10 days after” the House Republican leaders’ brief in opposition to the petition is filed, which would be Oct. 29.
The earliest conference for briefs ready to be distributed on Oct. 29 would be the conference of Nov. 20 — well after the presidential election.
[UPDATE: The two final paragraphs of this story have been updated to reflect information about a response extension that has been granted regarding the DOJ's Windsor and Pedersen petitions.]