Legal activists will almost certainly begin speculating now whether the high court is preparing to refuse to hear an appeal to preserve California’s same-sex marriage ban, Proposition 8. That action could come as early as Monday, October 1, or be pending for weeks.
Tuesday’s list included only those cases that the nine justices have agreed to review. It takes four justices to vote for review in order to accept an appeal.
Its next list, slated for release October 1, is expected to list hundreds of cases that the justices won’t review.
Hollingsworth v. Perry (formerly known as Brown v. Perry and Schwarzenegger v. Perry) is among the cases the Supreme Court was scheduled to discuss in their private conference meeting September 24, as were two cases challenging the Defense of Marriage Act (DOMA), and an appeal from the anti-gay National Organization for Marriage.
The two DOMA cases Those are Windsor v. U.S., an ACLU challenge to DOMA as it regards estate tax, in the federal district court in Manhattan; and Brewer v. Diaz, a Lambda Legal case regarding benefits to state employees, from the Ninth Circuit.
The NOM v. McKee appeal, from the National Organization for Marriage, seeks to overturn a First Circuit decision upholding the constitutionality of Maine state campaign reporting law requirements on political action committees. NOM has fought the requirements that it identify its donors to campaigns to block equal marriage rights for same-sex couples.
While there is no guarantee the justices have moved any of these four cases to the list of cases to be denied, the absence of the cases from the first grant review list seems to diminish their chances of being taken up. And that’s not necessarily bad news.
If the court does deny review to the Proposition 8 case, same-sex couples in California will, within days, be able once again to obtain marriage licenses from the state. That will make California the eighth state, plus the District of Columbia, to provide marriage equality for same-sex couples.
The two cases challenging DOMA — Windsor and Brewer — were long-shots at gaining high court review, primarily because two cases from Massachusetts have much more developed facts for the court to consider in regards to DOMA. Neither of those more developed cases – one from Gay & Lesbian Advocates & Defenders (GLAD’s OPM v. Gill) and one from the Massachusetts Attorney General’s office (HHS v. Commonwealth) — has yet been scheduled for a specific conference date before the justices.
In addition to the two Massachusetts DOMA cases, two others have sought Supreme Court review against DOMA — OPM v. Golinski (a Lambda case on benefits) and Pedersen v. OPM (a GLAD sister case to Gill)
If the high court does deny cert to the Proposition 8 case, Hollingsworth v. Perry, not everyone will be surprised. The high-profile attorneys Ted Olson and David Boies, who led the legal team that won the decision striking Proposition 8, filed a brief with the Supreme Court August 24 urging the court not to accept the case for review.
Olson and Boies argued that the Ninth Circuit decision upholding a district judge’s ruling that Proposition 8 is unconstitutional did “not conflict with any decision of this Court or any other court of appeals.”
“While there are circumstances that might make review of this obviously important issue attractive at this time—particularly the possibility of resolving this case in conjunction with the challenges to DOMA — those considerations,” said Olson and Boies, “must be weighed against the substantial and irreparable harm the period of additional review would impose on Plaintiffs and those situated similarly to them.”
Olson and Boies also argued that there are serious questions about whether the party appealing the Ninth Circuit decision has legal standing to bring its appeal. The City of San Francisco, which also opposed Proposition 8 in court, made similar arguments to the high court.
Many speculate that Olson and Boies, who made clear throughout the litigation that they hoped to eliminate bans on same-sex marriage nationally, lost enthusiasm for a Supreme Court ruling in the case after the Ninth Circuit issued its very narrow ruling to declare Proposition 8 unconstitutional.
The Ninth Circuit ruled that an initiative cannot take away from one group of citizens a right that exists for all. That, it said, violated the 14th Amendment’s guarantee of equal protection, as well as Supreme Court precedent in the landmark Romer v. Evans decision, striking down Colorado’s anti-gay initiative in 1996.