WASHINGTON – Proposition 8 and Defense of Marriage Act (DOMA) cases did not make the first list of cases that the U.S. Supreme Court will take up when the new term begins in October, surprising few legal observers.
Meeting on Monday, the nine justices reviewed hundreds of cases sent up for possible review, and several important cases involving gay rights were under consideration. And early this morning, the high court declared which cases it would take up, and the absence of the high-profile gay-rights cases disappointed the LGBT community.
Californians, in particular, are anxiously awaiting the resolution of the Prop 8 case that has been ruled unconstitutional by the lower courts. Today’s high court announcement pushes the next important date to Oct. 1 and leaves two possible scenarios:
1. The Supreme Court, on Oct. 1, will release the list of cases that it will not consider. If the Prop 8 and/or DOMA cases are placed on that list, then the lower court rulings will stand. Gay and lesbian couples in California would again be able to marry, as soon as the lower courts sign off on the case.
2. However, if the Prop 8 and/or DOMA cases are not on the list, that means the Supreme Court could be postponing any decision on those cases until after the presidential election.
The American Foundation for Equal Rights (AFER), which has successfully fought Prop 8 in district court and the appeals court, said today that some legal scholars have speculated that the Supreme Court may wait to consider the case until later this fall when the justices will decide whether to grant review in several cases challenging DOMA. There is also the distinct possibility that the justices will merge several high-profile gay-rights cases to review en masse.
Proposition 8 was ruled unconstitutional by the federal district court in San Francisco on Aug. 4, 2010 and upheld by the Ninth Circuit Court of Appeals on Feb. 7, 2012.
If the Supreme Court decides to hear the Prop 8 case, AFER’s legal team will be led by co-counsel Ted Olson and David Boies.
Ken Williams is Editor in Chief of SDGLN. He can be reached at [email protected], @KenSanDiego on Twitter, or by calling toll-free to (877) 727-5446, ext. 713.