SCOTUS deliberates

Timothy Kincaid

November 30th, 2012

Today the Supreme Court of the United States will meet and discuss a number of cases of importance to our community. The two highest profile cases are California’s Proposition 8 (currently called Hollingsworth v. Perry), and the collective challenges to the Third Clause of the Defense of Marriage Act.

Today they will decide whether to hear challenges in those cases or to let them stand. For a case to be heard, four justices must agree that they wish to deliberate the appeal. Their decisions will be announced Monday.

It’s all guesswork at this time, but my prediction (a common one) is that the judges will refuse to hear the appeal to the overturn of Proosition 8, agreeing with the Ninth Circuit Court of Appeals that once a right has been granted to citizens, it then cannot be taken away from one group of people based on dislike or disapproval, thus returning marriage equality to California. Thus the Court can, for now, delay a decision on the larger question about the constitutionality of anti-gay marriage bans.

Should they decide to hear Perry, it may mean that the court is prepared to decide whether heterosexual and homosexual citizens have equal standing under the law.

As for DOMA3, that is clearly unconstitutional. It is almost certain to get a writ of certiorari. The cases will probably be clumped, but common wisdom suggests that the Edie Windsor case will be the vehicle through which the challenge is argued. On the face of it “gay couples should pay higher taxes than straight couples” is and argument that does not sit comfortably with pro-gay liberals or anti-tax conservatives. Also going against DOMA3 is that it is a federal usurpation of an area of law that has traditionally been left to the states.

Of course, there is a chance that the court will not even hear DOMA3 but will simply agree that this is an unconstitutional law and let it be stricken next week. Monday will be exciting no matter the decisions made today.


November 30th, 2012

On the topic of “gay couples should pay higher taxes than straight couples,” a NOM supporter made that argument (with a straight face) on their facebook page in the days after the most recent election.

I pointed out to him that what he was suggesting was having an underclass of citizens who are required to shoulder a heavier tax burden so he could have a lighter one. Shortly thereafter, I was banned from posting at NOM. I didn’t swear, and I was never impolite or uncivil. For all the bleating they do about free speech, they sure love to shut down dissenters. PS I know that moderating a facebook page comes nowhere near the land of free speech – just pointing out their contradiction.


November 30th, 2012

You assume that if the Court refuses to grant certiorari, it means that the Court agrees with the decision below. That is not necessarily the case. Some justices may believe the Prop 8 case has too unique a fact pattern and may want to wait for another case. Some justices may be uneasy about the way the other justices might rule. The Court hears only about 1 percent of the cases before it. It’s refusal to hear a case doesn’t indicate agreement with that 99 percent.

Also, if the Court refuses to hear the challenge to Section 3 of DOMA, the statute would not be held unconstitutional nationwide, but only in the circuits that have already ruled. This would create a regional patchwork of differing federal law and a bureaucratic nightmare for federal officials. If for no other reason than this, the Court is likely to hear one or more of the DOMA challenges.


November 30th, 2012

Maggie Gallagher made essentially the same argument in response to an article at NRO that Roman Catholic priests should just refuse to sign civil marriage licenses — in her eyes, it’s OK for gay couples to live without the protection of the law, but not straight women and children.

I pointed out in the comments that it was obvious her concern was not preserving marriage, but pushing anti-gay bias.


November 30th, 2012

SCOTUS: 202-479-3000


November 30th, 2012

I believe all of the current justices use whats called defensive voting when granting certi, which is what Rob is referring to. Its easy to imagine that the liberals and conservatives being so uncertain about Kennedy’s (and Robert’s) vote in these cases, that they decline to hear all of them.

A little far fetched, but its certainly possible.

Mark F.

November 30th, 2012


Why are you giving out the number of Scotus? You seriously can’t believe the justices are influenced by phone calls, do you?


December 1st, 2012

pretty good analysis, Timothy. I saw that Jim posted an article from the Scotus Blog, I think this review is a good one as well (it’s one of a series and the others are good too, all from Scotus Blog):

Mark F:

While it might not be apparent at first glance, the Supreme’s are Human Beings, and as such, are sometimes swayed by Public Opinion. Read Jim’s article on the fromt page about Justices decide case of lifetime….

And yes, it might seem silly to call them, but hey, even the smallest chance of affecting the outcome is better than no affect, not to mention the other side is calling, so it might be prudent to do so ourselves and be represented.

Timothy Kincaid

December 1st, 2012

Thank you, Robert

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