2nd Circuit, 9th Circuit, Anthony Kennedy, Gay, Gay Marriage, John Roberts, SCOTUS, Supreme Court

Breaking: Supreme Court Decides To Hear Major Gay Rights Cases

The Defense of Marriage Act. California’s Proposition 8 ban on gay marriage. These were two of the big issues that the U.S. Supreme Court was deciding whether to hear this Term.

The Court just issued its certiorari orders. What happened?

This coming spring, One First Street is going to be gayer than the Castro on a Saturday night.

According to SCOTUSblog, the Supreme Court has agreed to hear Windsor v. United States, the DOMA case out of the Second Circuit, and Hollingsworth v. Perry, the Prop 8 case out of the Ninth Circuit.

More commentary to come, via updates below. Refresh your browser for the latest version of this post.

UPDATE (3:25 PM): It was all but certain that one of the DOMA cases would get granted. The Prop 8 case grant is more of a surprise. My guess is that, if they reach the merits, the justices will strike down Section 3 of DOMA. What they’ll do in Prop 8 is harder to predict (although David Boies seems optimistic).

UPDATE (3:35 PM): Per Lyle Denniston of 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.

So the justices could dodge the merits. That’s in Hollingsworth, the California gay marriage case. In the DOMA case:

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.

So there’s a definite focus here on standing issues. Denniston notes:

[I]t 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.

What does this all amount to — besides the biggest LGBT rights Term in a very long time, if not ever? Per Denniston:

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….

The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.

All eyes are on Justice Anthony M. Kennedy, the likely swing vote in both of these cases (although some, such as Chris Geidner, think Chief Justice John G. Roberts might also be persuadable). Justice Kennedy has been a friend of gay rights over the years, writing such major opinions as Romer v. Evans and Lawrence v. Texas.

But AMK also likes to be seen as a moderate and reasonable jurist. With two gay-rights cases before the Court this Term, might he do some Solomonic baby splitting, ruling for the gays in Windsor and against the gays in Hollingsworth? Just some idle speculation….

UPDATE (3:45 PM): Put my colleague Elie Mystal in the camp of those who view JGR as persuadable. As he just chatted to me: “Roberts seems pretty concerned about being on the right side of history and gay marriage, almost surely, is something that’s going to be okay in our society, sooner or later.”

As for when the Big Gay Cases will be heard, SCOTUSblog founder Tom Goldstein — who just gave us our Quote of the Day on these cases — predicts that “[t]he arguments very likely will be March 25-27, and a decision is very likely around June 27.”

UPDATE (4:02 PM): And Goldstein has a good track record on predictions in this area. Back in September, he predicted a grant in the Prop 8 case, even though many SCOTUS watchers were going the other way.

UPDATE (4:15 PM): If you haven’t been following these cases super-closely, Chris Geidner has a nice summary over at BuzzFeed.

UPDATE (4:21 PM): Okay, that’s pretty much all we have to say about these cases for now. For more — and to find out about the other cases granted today, including a thrilling one involving preemption of city towing laws — check out SCOTUSblog.

Live blog anticipating orders, hopefully regarding same-sex marriage [SCOTUSblog]

Earlier: An Interview of David Boies
A Preview of the Upcoming Supreme Court Term (OT 2012)
Quote of the Day: But Isn’t It Time for Them to ‘Get Theirs’?

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