Big news: The Supreme Court announced today in an order that it will take up the Prop 8 case and one of the several Defense of Marriage Act (DOMA) cases for further review. The next step in the review process for both cases is a scheduling order, which should come soon, laying out the date for oral arguments at the Supreme Court, although reports suggest that the cases will not be argued until late March. The Court’s term lasts until June, so we should have final news by then on the fate of Proposition 8, the state constitutional amendment banning marriage equality in California. This decision means that the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional continues to be stayed, and that couples cannot wed in California.
In the cases involving DOMA, which prohibits same-sex couples’ legal marriages from being recognized by the federal government and therefore denies 1,138 federal rights and benefits due to those couples, the Court specifically chose to hear the Windsor challenge and will likely make no public announcement regarding the other cases until after it rules on DOMA’s constitutionality.
In the Prop 8 case the Court added an additional question: “Whether petitioners have standing under Article III, §2 of the Constitution in this case.” This was a question addressed by the Ninth Circuit and by the Supreme Court of California, because people who appear in federal court need to have suffered an “injury,” and it isn’t totally clear that the mere fact of sponsoring an amendment means that one has legally suffered an “injury” if that amendment is struck down as unconstitutional. If Prop 8’s proponents lack standing to bring the case, the Court can’t decide the merits.
In the DOMA cases the government’s petition in Windsor v. United States was granted. The Court added additional questions: “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.” These questions arise because the Justice Department stopped defending Section 3 of DOMA on Feb. 23, 2011, and the Bipartisan Legal Advisory Group (BLAG), representing House Republicans, took up its defense.
The Court is asking the Justice Department (which filed this petition) if it has the right to bring the appeal, given that it agrees with Edith Windsor that Section 3 of DOMA is unconstitutional. The Justice Department has argued in the lower courts that as a part of the Executive Branch tasked with enforcing all laws until a final Supreme Court ruling striking them down, it is an “aggrieved” party when judgment is entered against enforcing the law.
The Justice Department has also argued that because BLAG is only a “legal advisory group” of the House, it lacks standing to appeal, as it is not the same as the whole Congress defending its work. The Court has never considered whether BLAG has standing since it was formed. If neither BLAG nor the Justice Department has legal standing, then the case cannot continue.
Arguments are expected in late March, and a decision is expected in late June.
This piece first appeared at Prop 8 Trial Tracker.
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