Today the court granted cert to the Prop8 case, and to one of the DOMA cases (Windsor). Included in their questions is a request for arguments about whether the defenders of the status quo have standing to argue the cases.
I do not like this. The cleanest result for us would be to deny cert for Prop8 and restore marriage equality to CA. If they find against us, it is broadly possible they could find NO right to marriage in the US, and that would be as bad as Bowers v. Hardwick.
The waiting, for those of us fighting Prop8, now continues.
From the Live blog at Scotusblog:
Prop. 8 is granted on the petition question -- whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.The 14th amendment includes both "equal protection" and "due process" clauses.
In Windsor, the government petition (12-307) is the one granted. In addition to the petition question -- whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.
Trying to sort this all out, it is clear that the Court has agreed to consider the merits case in Prop. 8, because that is what the petition presented as its question, but that it is also going to address whether the proponents had a right to pursue their case. If the Court were to find that the proponents did not have Art. III standing, that is the end of the matter: there would be no review on the merits of Proposition 8, or of the 9th CA decision striking it down.
Trying to sort out DOMA: The case has agreed to consider the merits issue of the constitutionality of DOMA Section 3, it has also given itself the option of not deciding that issue. If it finds that neither the Executive Branch could bring its appeal, and that BLAG lacked Art. III standing, then presumably both of those petitions would be denied. At that point, then, the Court might have to consider whether it wants to hear another DOMA case. But that probably would not be done in time for this term's close.
There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.
Olson and Boies are on the other side of the Prop. 8 case. I assume their brief and oral argument will go heavily against standing for the Prop. 8 backers, but also will urge the SCt to affirm the 9th CA on the merits. Since the 9th CA decision is very different from Judge Walker's decision, I doubt that they will be asking the Court to rule as Judge Walker did.
The key point, though, is that if they succeed in challenging the backers on the standing issue, the case is over: Prop. 8 is gone under the 9th CA decision, because there is no one to defend it. If there is no standing in Prop. 8, presumably that might lead to a ruling that the 9th CA decision has to be vacated. But then Judge Walker's decision would be the law of the case, because that was fully litigated with parties who clearly had standing. Prop. 8 backers would lose in an even bigger way.More commentary and links at Gay Married Californian.