Just breaking, via The Hill:
The Supreme Court announced Friday that it will hear a challenge to the Defense of Marriage Act (DOMA) — the federal law that defines marriage as a union between a man and a woman. The court also agreed to hear a lawsuit challenging California’s statewide ban on same-sex marriage.
Supporters of same-sex marriage are optimistic about the chances the court will strike down DOMA, making all marriages equal in the eyes of federal law. It would be a historic ruling, and one of the most significant civil-rights decisions in the court’s history.
The challenge to California’s Proposition 8 goes a step further, providing the court with an opening to declare that there is a constitutional right to same-sex marriage. The justices will consider whether the 14th Amendment bars California from enforcing a law that prevents same-sex couples from marrying.
I haven’t written specifically about the DOMA challenge, except as relates to the Justice Department’s about-face and refusal to defend DOMA, and the related threats by DOMA opponents to disrupt the client relationships of the private law firm hired by the House of Representatives to defend DOMA in place of DOJ. That resulted in the law firm, King & Spalding, withdrawing.
- Is There Now A Hostile Environment For Pro-Traditional Marriage Views At King & Spalding?
- King & Spalding Says Yes to Gitmo Detainees, No to Congress
- Executive Branch DOMA Power Grab
I have written a lot about the California case, in which the 9th Circuit affirmed a district court decision overturning Prop. 8. The 9th Circuit did so on very narrow grounds, holding that because for a period of time gay marriage was legal in in California (based on a California Supreme Court decision), voters could not amend the Constitution to revert to the status prior to the California Supreme Court decision.
- 9th Circuit holds Prop. 8 violates 14th Amendment
- Ted Olson May Be Too Smart By Half
- Deconstructing Marriage
- Fed Judge Finds Calif. Prop. 8 Unconstitutional
- Federal Challenge to Prop. 8
- Split Decision on Prop. 8 (California Supreme Court upholding Prop. 8)
We now may find out what Elena Kagan meant when she said there is no constitutional right to same-sex marry (and whether I am a rube):
- Will Anyone Ask Kagan What The Meaning of “Is” Is?
- Kagan Said She Meant What She Said About Gay Marriage
- Will Kagan Dispute What The Meaning Of “Is” Is?
- Supreme Irony – Kagan Nomination Ends Gay Marriage Hopes
Update: The Orders indicate the Court also will consider procedural issues which could kill review of the substance, namely whether certain parties (in each case, the party on the side opposing gay marriage and defending DOMA) even have standing (i.e., a legal right) to do so. While it’s hard to believe the Court would accept the cases only to never reach the merits, that could happen. More likely, agreement to hear those issues might have been part of the Court’s internal deliberations on whether to take the cases as all:
And, the lack of standing in California case could have an unexpected result, depriving the federal courts (including the court which overturned Prop. 8) of jurisdiction for lack of an actual case or controversy (a constitutional requirement for federal court jurisdiction), as explained by Orin Kerr:
So the court may avoid ruling on the constitutionality of Prop 8 by saying that the case should not have been allowed to proceed in the first place — which I gather would mean that the lower court decisions are off the books, as there was no jurisdiction in the cases that would allow them to be decided.
See this student law review Note for more about this. The standing issue came about because none of the elected officials in California would represenst the voters, so privatge groups stepped in to defend the law. How ironic would it be if the Supreme Court effectively reinstated Prop. 8 by saying that it never should have been federal court because the public officials vested with standing (who opposed Prop. 8) refused to act?