Marriage equality supporters on the West Coast were up early this morning, awaiting a possible decision by the U.S. Supreme Court on whether to accept for argument the federal Proposition 8 case, but when the court posted its list of cases at 6:30 a.m. Pacific time, there was no mention of that case or several others involving the Defense of Marriage Act.
One of the attorneys for the plaintiffs in the Prop 8 case said that the delay was “not unusual.”
The U.S. Supreme Court once again delayed indicating whether it will hear one or more of 10 petitions before it concerning same-sex marriage.
Many legal observers expected to learn Monday that the court refused to hear an appeal concerning Prop 8 and an appeal concerning Arizona’s law banning equal benefits for the domestic partners of gay state employees. Both a federal district court and the 9th U.S. Circuit Court of Appeals have ruled that Prop 8, passed by California voters four years ago, is unconstitutional. The appeals court put a stay on its decision pending review by the Supreme Court.
But when Monday’s orders list appeared, neither those cases nor any of the eight petitions concerning the Defense of Marriage Act were on it.
[Updated: Later in the morning, the Supreme Court website indicated the justices have rescheduled – or re-listed – all 10 petitions for its next scheduled conference meeting, Friday, December 7.]
Veteran Supreme Court reporter Lyle Denniston speculated recently that the announcement of a decision not to take up the Prop 8 case could take longer than usual because some justices might be writing dissents from the court’s decision not to review the lower court decision.
Four justices must agree to hear a case in order for it to be taken up for review by the Supreme Court.
A decision not to take up the Prop 8 case, Hollingsworth v. Perry, will mean that same-sex couples will again be able to obtain marriage licenses in California within just a few days – a major development legally and politically. Officials in San Francisco and Los Angeles have been actively preparing for what they expect to be thousands of same-sex couples seeking marriage licenses, since November 2008 when a voter approved initiative amended the state constitution to stop allowing same-sex marriages in the state.
It would also mean that California, the most populous state in the nation, would become the 10th state, plus the District of Columbia, to enable same-sex couples to marry. That adds up to 28 percent of the U.S. population living in a jurisdiction where same-sex couples can marry.
Of equal concern is how the court will eventually decide to take up the appeals of decisions from three U.S. Circuit Courts of Appeal that have struck down DOMA as unconstitutional. The high court could potentially take none, but most legal experts say it is almost certain to accept one or more of the five cases.
In a less visible case, the court has also been asked to hear a case from Arizona, Brewer v. Diaz, challenging a state law that bans equal benefits for gay state employees and their domestic partners.
Gay legal activists are studiously resisting the temptation to speculate about the amount of time the court is taking to decide whether to take any of the cases.
The justices were first scheduled to discuss the cases in conference in late September. That conference was re-scheduled for mid-November and then re-scheduled again for November 30.
Theodore Olson, part of the high-profile legal team that has been successfully challenging Prop 8, said Monday that it’s “not unusual for complex cases to be re-listed,” or be discussed by the justices in more than one of their private conferences.
[Updated: The court could conceivably issue an orders list on any of these cases Friday, following its conference meeting, or next Monday as part of its routine orders list issuance.]
The court could conceivably issue another orders list any day now. It is next scheduled to discuss cases Friday, December 7, and, if it takes one or more of the marriage-related cases, it would likely issue an orders list on Friday. The court’s calendar suggests that, if one or more of the cases is accepted for review, it will likely be argued in late March but could be argued as late as April 24.
– Reported by Lisa Keen