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Christopher Stoll

Analysis

LGBT rights take center stage at Supreme Court: What to expect this week

Sunday, September 23, 2012
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On Monday the United States Supreme Court returns from its summer break. From their very first day back on the job, the justices will begin considering what is surely the largest number of LGBT equality cases that they have ever faced in a single term.

And these aren’t just any cases, either. The cases on the Court’s fall docket have the potential to become watershed moments in the history of the LGBT movement.

Depending on what the justices do over the next several weeks, marriage equality may soon be restored in California, the Court may be on its way to striking down a destructive and discriminatory law that denies federal benefits to every married same-sex couple in America, and an important precedent about same-sex domestic partners could be set.

So here’s a breakdown of what to expect.

The Supreme Court Conference

First, some background: The Supreme Court is not required to accept all the cases it is asked to review. In fact, it rarely accepts more than 100 or so of the thousands of cases it is asked to hear each year. The justices hold a conference several times a month at which they vote on whether or not to accept cases that they have been asked to review.

If they take a case, they set the case for argument within a few months and generally issue their decision no later than the last day of the term, in June. If they do not accept a case, the decision of the lower court stands and becomes the final ruling in the case. The justices also have the option to postpone deciding whether to take a case and consider it at a later conference.

On Monday, Sept. 24, the justices will hold their first conference of the new term. It’s a lengthy agenda, given that it includes all the cases that the Court has been asked to review since they held their last conference before the summer break.

The Cases

Three of this year’s potential landmark LGBT equality cases are on that Sept. 24 agenda. The first is the decision of the Ninth Circuit court of appeals earlier this year to uphold Judge Vaughn Walker’s 2010 ruling striking down California’s Proposition 8, which banned marriage for same-sex couples in that state.

The second is a decision from the U.S. District Court in New York striking down Section 3 of the so-called Defense of Marriage Act (DOMA), which prohibits the federal government from recognizing the legal marriages of same-sex couples for any purpose, such as Social Security spousal benefits. The Court has also been asked to review three other challenges to DOMA, and those cases will be on the Court’s conference calendar in the coming weeks.

The third is another Ninth Circuit ruling, which said that an Arizona law that stripped domestic partner benefits from state employees is very likely unconstitutional, so Governor Jan Brewer cannot enforce the ban on benefits until the federal courts issue a final decision in the case.

What Could Happen

The justices’ conference is completely secret. No one is ever told how any justice voted, except in rare cases where a justice writes a public dissent expressing disagreement with the Court’s decision to turn down a case. The public does not find out whether the Court decided to take a case until it issues an order either granting or denying review.

If the Court decides on Monday to take any of the three LGBT rights cases on the calendar that day, it could announce as early as Tuesday morning that they have been accepted, and those cases will then be on their way to a Supreme Court decision by June 2013.

Most observers (including me) think it’s very likely that the Supreme Court will take at least one of the DOMA cases that are up for consideration over the next few weeks. With the Prop 8 and Arizona cases, it’s more likely that the justices will let the lower court rulings stand.

What It Means

OK, I know what you’re thinking now: Come next Tuesday, if the Supreme Court hasn’t decided to take the Prop 8 case, it’s over, and marriage will be legal again in California. Time to celebrate!

Well, not quite. Keep that champagne corked for just a little bit longer.

There’s a confusing twist here. The Court usually releases the list of cases in which it has denied review at 10 a.m. on the Monday following the conference. Normally, conferences are held on Fridays, so there’s not much of a delay, and we find out on the same day which cases have been accepted, which cases have been declined, and which ones are being held over for a later conference.

But this first conference after the summer is being held on a Monday. That means that although we could know as early as Sept. 25 which cases were accepted, we will have no idea until Monday, Oct. 1, whether the remaining cases have been turned down, or whether they have been rescheduled for consideration at a later conference.

Translation: If the Court announces next week that it is accepting some of the cases from Monday’s conference, but the three LGBT equality cases do not appear on that list, we will still know precisely nothing about whether the Supreme Court is going to take them. We will not find out until Oct. 1 whether the justices have voted to turn down any of the LGBT cases, or whether the Court is still considering whether to take them.

It’s entirely possible that the Court could decide to hold off considering any of these cases until a later conference — possibly so that they can be considered at the same time as the other DOMA cases.

I know your next question, too: So what about Oct. 1? If the Court denies review of the Prop 8 case, is the case over? Can same-sex couples once again marry in California?

The answer is yes, but probably not for several days. Once the Supreme Court denies review, the case goes back to the court of appeals. The court of appeals’ decision does not go into effect until it issues the “mandate,” a document saying that the case is over. That would likely happen within several days after the Supreme Court’s ruling.

Hopefully, more information will be available soon from state and county officials about when exactly they plan to start issuing marriage licenses if the Supreme Court does not take the Prop 8 case.

Bottom line: There’s no need to start chilling the champagne until Oct. 1, and even then, you might have to keep it on ice for a while.

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