Tuesday, November 27, 2012

Preparing For Prop 8 Decision Day: The Options

John Gara/Buzzfeed

The Day of Decision for California's Proposition 8 is fast approaching. LGBT legal guru Chris Geidner summarizes the 4 possibilities that the United States Supreme Court will most likely be deciding on Friday November 30th:
• The court takes multiple DOMA cases and the Proposition 8 case. This outcome would be the “all in” option, and it would make clear that at least four justices want the court to resolve the legal questions surrounding these issues, from what level of scrutiny that laws classifying people based on sexual orientation should be given (see more about this here) to whether gay couples have a constitutional right to marry. (The DOMA cases also feature the unusual circumstances, in place since February 2011, of the Obama administration opposing the law's constitutionality and the House Republican leadership defending the law.)
• The court takes one DOMA case, while holding the other DOMA cases pending that decision, and takes the Proposition 8 case as well. This is not very different from the first possibility, although the choice of one DOMA case over another could be seen as narrowing the type of argument about the law that the court would like to hear. More likely though, it would simply be a sign of the justices having picked a case in which Justice Elena Kagan, who served as the top appellate lawyer in the Obama administration before joining the court and may choose to recuse herself from one or more of the DOMA cases because of that, can participate.
• The court takes one DOMA case and holds the rest of the cases, including Proposition 8, pending the outcome of the DOMA case. This prospect, advanced as a possibility by Georgetown law professor Nan Hunter, could be taken by a cautious court, wanting first to resolve some general questions — including the level of scrutiny to be applied to sexual orientation classifications — before acting on the other, more direct, question about whether same-sex couples have a constitutional right to marry that is raised in the Proposition 8 challenge. This, as with taking the Proposition 8 case, would delay when same-sex couples in California might be able to marry.
• The court takes a DOMA case, but denies certiorari in the Proposition 8 case. This option, once considered by advocates to be the most likely possibility, would lead to same-sex couples being able to marry in California within days. The Ninth Circuit’s ruling in the case did not broadly resolve the marriage question, instead holding that Proposition 8 was unconstitutional because it took back rights formerly held by Californians. As there are other cases in the legal pipeline about same-sex couples marriage rights that could make their way to the Supreme Court, the court could decide to let the narrow Ninth Circuit decision stand.
Tune in to this space on Friday for the news of what happens with Proposition 8!

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