Online extra: Justices make no decision on Prop 8 case
by Lisa Keen
On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday, October 1 did not include the Proposition 8 case on the list of cases it would or would not review.
Monday's list of cases was the third released thus far by the Supreme Court for this term. The justices originally scheduled the case, Hollingsworth v. Perry, for discussion in their September 24 meeting, prompting many to speculate that the court would announce on either September 25 or October 1 whether it would take up the appeal from those seeking to preserve the ban on same-sex marriages in California.
But on Wednesday afternoon, September 26, a notice was posted in the pressroom at the Supreme Court, indicating the case was being "rescheduled" for a later conference meeting. As of deadline this week, the docket did not indicate a new conference date for the highly watched case.
Theodore Olson and David Boies, lead attorneys on the American Foundation for Equal Rights legal team that has won lower court victories striking down Prop 8 – California's same-sex marriage ban – did not respond to queries for comment.
But Therese Stewart, chief deputy city attorney for San Francisco, which was also involved in the Prop 8 case, said the rescheduling of Hollingsworth may signal that the high court is considering "whether it will take Perry and the DOMA cases together." Or the justices may want to ensure their handling of the marriage cases don't have "any impact on the election."
"But I think the former is the more likely reason it was put over," said Stewart.
The justices are also determining whether to hear any of several cases challenging the federal Defense of Marriage Act.
The Supreme Court calendar indicates only three conference meeting dates for the justices in October – all Fridays – October 5, 12, and 26. Typically, if a case is discussed in conference, its disposition is announced the following Monday (or if Monday is a holiday, then Tuesday).
Regardless of what the court decides to do, the news will be significant.
If the court takes review, then both sides will brace themselves for a decision that could make statewide same-sex marriage bans more difficult or easier to defend.
If the court decides not to take the appeal, then same-sex couples in California will soon be able to obtain marriage licenses again. Such a development on its own would boost momentum for a growing acceptance of marriage equality around the country, and make California the eighth state, plus the District of Columbia, to provide for equal protection in marriage.
By not hearing the appeal of Prop 8 supporters, the court would be leaving as precedent, the 9th U.S. Circuit Court of Appeals' decision that taking away the right to marry from an unpopular group, without a rational reason for doing so, violates the equal protection guarantee of the Constitution.
"The immediate effect of [not taking review] would be to allow marriage in California," said Stewart, adding that, "once the 9th Circuit issues its mandate, [that] should happen quickly."
Leaving the 9th Circuit decision as precedent would apply only to the 9th Circuit states – California, Arizona, Nevada, Oregon, Idaho, Washington, Montana, Alaska, and Hawaii.
"The effect on other states would not be immediate," said Stewart, "but the reasoning of the 9th Circuit might be used in other cases. The circumstances in California are somewhat unique, so whether another court or even another panel of the 9th Circuit would apply all or some of the reasoning of the Perry panel to a different case probably depends on how similar or different the case is and who is on the panel deciding the case."
Having Perry preserved in the 9th Circuit may have some "persuasive effect" should Washington state voters reject a new marriage equality law there in November, prompting litigation, said Stewart, "especially because the situation would be closer to California's than most."
Lawmakers in Washington approved a same-sex marriage law earlier this year and the governor signed it. But it has not gone into effect because opponents gathered enough signatures to force a referendum.
The Supreme Court announcements usually fall into one of two categories: "Cert granted" or "Cert denied."
"Cert" is legal shorthand for "Petition for Writ of Certiorari," a request that usually comes from a party who has lost litigation in a federal appeals court, asking the high court to review the lower court decision and change it. If the court "grants cert," then at least four justices have voted to review the lower court decision and the case will be heard by the full bench. If the court "denies cert," then the Supreme Court will not hear the case and the lower appeals court decision stands as precedent for the states in that circuit. While these are the most frequent options, the high court can take other actions as well.
Stewart said that, if the Supreme Court decides not to review the Prop 8 decision, the 9th Circuit would then issue its mandate requiring equal treatment of same-sex couples. Stewart said that typically takes about a week.
"But here I think the court would get the mandate out very quickly, within a day," said Stewart. "I am told that the state department of public health is all over this, i.e., ready to act promptly once the mandate issues."