Supreme Court Grants Prop 8, DOMA Cases

The SCOTUSblog live blog reports: “Prop. 8 is granted. So is Windsor. Those are the only two marriage cases granted.”

SCOTUSBlog’s live blog continues: “Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way.” No surprise there — except perhaps to Jeffrey Toobin. The Court then added a question of its own: “Whether the backers of Prop 8 have standing in the case under Art. III.” 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.

More from SCOTUSblog: “In Windsor, the government petition (12-307) is the one granted. In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the 2d CA decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.” So again, the court will have a possible out through a ruling on Article III standing. These cases will be fascinating to watch.

UPDATE: There’s some interesting discussion at SCOTUSblog and in the comments here about what would happen if the Court rules that there was no Article III standing in the Prop 8 case. It might be the case that the Ninth Circuit decision is overturned but the District Court decision is left standing, with the catch that the district court decision is not precedential: It can only provide relief to the particular plaintiffs who challenged Prop 8. I’m not sure what happens then. One possibility is that the state would decide not to enforce Prop 8, and then there would be another attempted suit brought against the state to require it to enforce Prop 8, leading to another round of litigation on the question that would have to start from scratch. The question is further complicated by the fact that if there is a majority on the Supreme Court to say that there was no standing on appeal, there may also be a majority to find a way to take the district court’s decision off the books. Cf. Hollingsworth v. Perry (2010). It’s also interesting that if the Justices send the case back to the district court, it won’t go back to Walker, as he has retired. Anyway, it’s an interesting issue, and I suspect that these possibilities are likely to impact how the Supreme Court views the standing question. But I’ll defer to the analysis of others who have more expertise on this than I do.