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SCOTUS and marriage equality — will it punt today on taking the Prop 8 case? (w/UPDATE – No action.)

UPDATE: No action today, via SCOTUSblog: #scotus did not act today on #ssm petitions. Could issue orders Mon, but Dec 7 more likely. 2 other grants, including gene patents.”

Today the U.S. Supreme Court will consider whether to hear the Proposition 8 Case (Hollingsworth v. Perry [formerly Perry v. Brown]).  When Prop 8 passed in California in 2008, it halted the legal right of gay couples to marry in the state. It has been overturned in state and federal courts and now is before SCOTUS. Should it grant review the case, the Justices will go on to consider whether Prop 8 violates the 14th Amendment to the U.S. Constitution.

Many experts think the court will punt, allowing the February 2012 decision of the U.S. Court of Appeals for the 9th Circuit that struck down Proposition 8 to stand, ending marriage inequality in California — so same-sex unions can proceed. That of course, will leave all states without marriage equality– many with constitutional amendments in place — sh*t out of luck for now.

The American Foundation for Equal Rights (AFER) gives additional back story:

The Perry case, along with several cases challenging the federal Defense of Marriage Act (DOMA), have been distributed for discussion at the Justices’ private Conference scheduled for Friday, November 30, 2012

…The Perry case was filed on May 22, 2009, in Federal District Court on behalf of two California couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo. On February 7, 2012, the United States Court of Appeals for the Ninth Circuit issued a landmark ruling upholding the historic August 2010 decision of the Federal District Court that found Proposition 8 unconstitutional. On July 30, 2012, the proponents of Proposition 8 asked the Supreme Court to review the Ninth Circuit’s judgment. A request for Supreme Court review, known as a petition for a writ of certiorari, is only granted upon an affirmative vote of four Justices.

…The Supreme Court is expected to release an Order List with its decisions on cases it has granted or denied review from its November 30 Conference by Monday, December 3. In the event that the Court neither grants nor denies review in Perry by December 3, the Justices will discuss the case again at a future Conference.


  1. If the U.S. Supreme Court decides to hear our case for marriage equality, AFER’s distinguished co-counsel Ted Olson and David Boies will file written briefs and present oral argument in the spring. A final decision would likely be issued by June 2013.
  2. If the Court decides not to hear our case, the Ninth Circuit decision that ruled Prop. 8 unconstitutional will be made permanent, with marriages starting as soon as the Ninth Circuit issues its mandate, likely within several days after the Supreme Court denies review.



Meanwhile, in Nevada, a federal trial court ruled that the state can, in fact, discriminate against gay and lesbian couples. Chris Geidner at Buzzfeed:

Judge Robert C. Jones, a George W. Bush appointee, found that the U.S. Constitution’s guarantee of equal protection of the laws does not “prohibit[] the People of the State of Nevada from maintaining statutes that reserve the institution of civil marriage to one-man–one-woman relationships.”

Jones ruled that prior Supreme Court precedent—a 1972 case, Baker v. Nelson, that denied a same-sex couple’s marriage claim as lacking any “substantial federal question”—controlled his decision. Even if not, he ruled that the “exclusion of same-sex couples from the institution of civil marriage” was constitutional “[b]ecause the maintenance of the traditional institution of civil marriage as between one man and one woman is a legitimate state interest.”

Apparently Jones thinks that marriage equality being affirmed in other states is meaningless — all the more reason why the U.S. Supreme Court will in the end provide the freedom to marry for states under the thumb of amendments, timid legislatures, and bigoted state courts.

Lambda Legal Staff Attorney Tara Borelli:

“This is not the end of this fight.  We will appeal and continue to fight for these loving couples, who are harmed by Nevada’s law barring marriage for same-sex couples.  By forbidding same-sex couples’ access to marriage, the State brands them and their children as second-class citizens.

“This entire decision rests on the ridiculous premise that a ‘meaningful percentage of heterosexual persons’ will decide not to get married if same-sex couples can.  Not only is this not true, but it is settled law that the government is not allowed to cater to private biases – which is all that imagining that ‘some couples won’t join this club if those people are admitted’ amounts to.  We are confident this ruling will be overturned on appeal to the Ninth Circuit Court of Appeals.”



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Pam Spaulding

Pam Spaulding