The Supreme Court's Four Most Likely Moves On Gay And Lesbian Couples' Marriage Rights

On Friday, the Supreme Court is expected to decide whether it will be hearing cases about the Defense of Marriage Act and California's Proposition 8. Constitutional rights of same-sex couples hang in the balance.

The Supreme Court’s decisions on which marriage cases to hear, expected as soon as Friday, likely will set the course of the national debate about gay and lesbian couples' marriage rights for the coming months and years.

The same-sex couples who filed the cases, some of which date to early 2009, are asking courts to rule that laws like the Defense of Marriage Act and California’s Proposition 8 are unconstitutional. The decision of which cases to hear — involving all three branches of government — will set up several months of action on the issue at the Supreme Court.

The portion of DOMA being challenged, known as Section 3, requires that the words “marriage” and “spouse” in all federal laws and regulations apply only to marriages between one man and one woman. In 2008, voters in California adopted Proposition 8 to amend the state’s constitution to prohibit same-sex couples from marrying. Because two different appeals courts have struck down DOMA, at least one of the several DOMA challenges is almost certain to be accepted by the court. It is less certain whether the court will hear the challenge to Proposition 8.

The court, after several false alarms, now appears to have settled on deciding this Friday which of the cases it will hear. Along with the DOMA and Proposition 8 cases, the court also will be considering a request brought by Arizona Gov. Jan Brewer, who is asking the court to overturn a court order halting enforcement of a state law that ended domestic partner health insurance benefits, which included same-sex couples, while making no changes to married couples’ health insurance benefits, which excludes same-sex couples.

In Friday’s conference, four of the justices need to vote in favor of hearing a case for the court to accept it, a process called a writ of certiorari.

Although there are numerous possible outcomes of the justices’ Friday conference, four results look most likely:

• The court takes multiple DOMA cases and the Proposition 8 case. This outcome would be the “all in” option, and it would make clear that at least four justices want the court to resolve the legal questions surrounding these issues, from what level of scrutiny that laws classifying people based on sexual orientation should be given (see more about this here) to whether gay couples have a constitutional right to marry. (The DOMA cases also feature the unusual circumstances, in place since February 2011, of the Obama administration opposing the law's constitutionality and the House Republican leadership defending the law.)

• The court takes one DOMA case, while holding the other DOMA cases pending that decision, and takes the Proposition 8 case as well. This is not very different from the first possibility, although the choice of one DOMA case over another could be seen as narrowing the type of argument about the law that the court would like to hear. More likely though, it would simply be a sign of the justices having picked a case in which Justice Elena Kagan, who served as the top appellate lawyer in the Obama administration before joining the court and may choose to recuse herself from one or more of the DOMA cases because of that, can participate.

• The court takes a DOMA case (or multiple DOMA cases) and holds the rest of the cases, including Proposition 8, pending the outcome of the DOMA case. This prospect, advanced as a possibility by Georgetown law professor Nan Hunter, could be taken by a cautious court, wanting first to resolve some general questions — including the level of scrutiny to be applied to sexual orientation classifications — before acting on the other, more direct, question about whether same-sex couples have a constitutional right to marry that is raised in the Proposition 8 challenge. This, as with taking the Proposition 8 case, would delay when same-sex couples in California might be able to marry.

• The court takes a DOMA case (or multiple DOMA cases), but denies certiorari in the Proposition 8 case. This option, once considered by advocates to be the most likely possibility, would lead to same-sex couples being able to marry in California within days. The Ninth Circuit’s ruling in the case did not broadly resolve the marriage question, instead holding that Proposition 8 was unconstitutional because it took back rights formerly held by Californians. As there are other cases in the legal pipeline about same-sex couples marriage rights that could make their way to the Supreme Court, the court could decide to let the narrow Ninth Circuit decision stand.

The court also will do something with the Arizona case, but — even though it is not a case about marriage rights — that outcome is likely to be linked, in one way or another, to the way the other cases are handled. If the court takes both DOMA and Proposition 8 challenges, they might hold the Arizona case or deny certiorari. If they deny certiorari in the Proposition 8 case, the justices would almost definitely deny certiorari in the Arizona case. If they accept certiorari in the Arizona case, that would be a surprise and could signal an ambitious agenda by the more conservative justices on the court to reverse the recent trend of court decisions favoring same-sex couples. [UPDATE: Some scholars have pushed back on the specific possibilities for action on the Arizona case, suggesting there are a couple of reasons why the court could take the case. BuzzFeed will have more on those issues in the coming days.]

Following the conference, the court could announce which new cases it has taken as early as Friday afternoon. The latest an announcement would be expected is 9:30 a.m. Monday, when the court is expected to issue an order list, reporting its actions from the conference. If the justices deny certiorari in the Proposition 8 or Arizona cases, that decision most likely will not be announced until the order list is issued Monday morning — regardless of whether the accepted cases are announced Friday or not.

Once the court accepts a case, the petitioner — generally, the party seeking reversal of the lower court’s opinion — has 45 days to file its opening brief. (This could be slightly adjusted due to the unusual procedural circumstances of the parties in the DOMA cases.) The opposing party or parties have 30 days to respond, and the petitioner then has 30 days to reply to that. During that time, other groups and individuals will submit filings — called amicus curiae, or friend of the court, briefs — expressing their views on the case.

Then, the court will hold an oral argument on the case — in spring 2013 — and, in the following days, a conference to vote on the case. Although the justices can change their votes, the initial vote sets up the opinion-drafting process, in which one justice in the majority begins crafting the court’s tentative opinion and other justices begin crafting dissenting opinions or, later, opinions concurring in the court’s decision but using somewhat different reasoning. Drafts are circulated and, once the justices are done writing, the opinions are issued — likely in late June 2013.

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