Which same-sex marriage cases do you think the Supreme Court will hear (pick as many as you want)?

[scream4ever]

As most of you know, the Supreme Court is set to conferance the same-sex marriage cases on Friday, November 30th, and release the list of which ones they will hear on Monday, December 3rd.

I expect they will reject Diaz and Perry, grant cert in Windsor, and ignore the others (the verdict in Windsor would resolve them). Diaz and Perry were decided on narrow grounds, while Windsor raises new questions of heightened scruintity for gays/lesbians.

What do you guys think?

[rareboy]

Good question.

I'm stumped.

[JockBoy87]

Windsor, and a chance for Pedersen as well to establish standing.

[scream4ever]

Windsor, and a chance for Pedersen as well to establish standing.

Wasn't Mass. the case with the standing issue (which essentially won't be a problem anymore since it was consolidated with Gill)?

[Rolyo85]

I am bad with names, but I remember that recently the Obama administration asked SCOTUS to take the one that was done with higher scrutiny, not sure which one that was.

[scream4ever]

I am bad with names, but I remember that recently the Obama administration asked SCOTUS to take the one that was done with higher scrutiny, not sure which one that was.

That was Windsor.

[Rolyo85]

Yeah, well I imagine that's what SCOTUS will pick up. I remember the Repubs frantically begging them to pick another one, without higher scrutiny... Schmucks...

[scream4ever]

Figured I'd bump this thread up to get more votes.

[Ninja108]

Kennedy will be the swing vote as Scalia,Thomas and Alito will vote no. Thomas's no vote will anger me the most. If not for the Supreme Court,he and his current wife wouldn't have been allowed to get married.

[scream4ever]

Figured I'd bump this thread up again to get more votes, especially considering it appears that the Supreme Court will not change the conference date.

[JockBoy87]

The right to marry is ironclad.

Check out all the juicy quotes in this video.

[rareboy]

I'm on the edge of my seat now.

[Rolyo85]

Yeah, I don't know how I'm gonna sleep tonight...

[White Eagle]

This was sent to me as a reminder of the SCOTUS consideration. There is a link to sign up for breaking news from AFER.

http://act.afer.org/site/MessageView...1&em_id=2901.0

Tomorrow, the U.S. Supreme Court will consider whether it will hear AFER’s federal constitutional challenge to California’s Proposition 8.

By Monday, we could either be preparing to make our case for full federal marriage equality before the nation’s highest court, or gay and lesbian couples will once again be making wedding plans here in California. The Justices may also postpone making a decision until a future date.

[gewhite3]

I didn't vote in the poll but I found this article with an interesting analysis of what could happen tomorrow:

http://www.towleroad.com/2012/11/wha...-tomorrow.html

[scream4ever]

Remember that we likely won't know anything until Monday morning.

[rareboy]

I can't wait that long.

[scream4ever]

It'll fly trust me!

[JockBoy87]

Time slows down as you fall into a black hole.

[pjlikesporn]

And from Nevada, a minor twist (link via the Advocate):

JUDGE UPHOLDS NEVADA MARRIAGE BAN

"Judge Robert C. Jones ruled that limiting marriage to one man and one woman is a 'legitimate state interest' because otherwise, 'a meaningful percentage of heterosexual persons' might not want to get married."

Hopefully the Ninth Circuit will reverse this prior to SCOTUS arguments.

[JockBoy87]

^^^

Right after the one in Hawaii.

These are organized efforts so they will probably be appealed.

[JayHawk]

So what happens if the court simply puts it back under review but fails to hear the case?

[JockBoy87]

So what happens if the court simply puts it back under review but fails to hear the case?

What do you mean?

[bankside]

So US Supremes to decide on cases apparently?

http://www.economist.com/news/united...-decision-time


edit:
right - they won't say till monday.

[JayHawk]

What do you mean?

Well they have two choices now as I understand it... They can refuse to hear them and in that case the decision of the lower courts stand and that means DOMA is overturned and marriage is legal in California....

However, they can also say they need more time and put them back on the list for a decision at a later date....

I know zippo about the court but that was how it was explained last Friday on MSNBC...

I was wondering what happens if they stay on that lineup but are never rejected and never heard? Is there a precedent and can they stay in waiting forever?

[RazorzEdge88]

Well they have two choices now as I understand it... They can refuse to hear them and in that case the decision of the lower courts stand and that means DOMA is overturned and marriage is legal in California....

However, they can also say they need more time and put them back on the list for a decision at a later date....

I know zippo about the court but that was how it was explained last Friday on MSNBC...

I was wondering what happens if they stay on that lineup but are never rejected and never heard? Is there a precedent and can they stay in waiting forever?

That won't happen. I guess they can stay in waiting indefinitely, in theory, but there's no precedent for it.

BTW - point of clarification: DOMA is the law about Federal recognition of state-level same-sex marriages (for couples in Massachusetts and New York). The law about California marriage equality is Prop 8.

[palbert]

There will be no sweeping decision -- it will be on the narrowest grounds possible. I anticipate per curiam affirmance of the Ninth Circuit and of DOMA repeal.

[JayHawk]

Right I understand both about DOMA and prop Eight cases that are filed. I certainly hope ALL cases are rejected and therefore stand. However I am pessimistic and feel that California will be rejected because that changes nothing for the entire nation and the DOMA cases will sit on the waiting list because they dont want to decide.

[JayHawk]

There will be no sweeping decision -- it will be on the narrowest grounds possible. I anticipate per curiam affirmance of the Ninth Circuit and of DOMA repeal.

How do you mean? Are you saying it has to return to circuit court where a decision is already rendered?

[RazorzEdge88]

Right I understand both about DOMA and prop Eight cases that are filed. I certainly hope ALL cases are rejected and therefore stand. However I am pessimistic and feel that California will be rejected because that changes nothing for the entire nation and the DOMA cases will sit on the waiting list because they dont want to decide.

I think you're right about Prop 8, but I don't think they can really do that with DOMA.

DOMA has now been rejected in two different circuits. SCOTUS isn't keen on allowing a law to be nullified in a handful of states and remain in all others. It's a pretty pressing question at this point. They have to act.

[palbert]

How do you mean? Are you saying it has to return to circuit court where a decision is already rendered?

They will uphold 9th Circuit decision, which affords them a way to recognize our rights but limit it to CA.

[JayHawk]

I think you're right about Prop 8, but I don't think they can really do that with DOMA.

DOMA has now been rejected in two different circuits. SCOTUS isn't keen on allowing a law to be nullified in a handful of states and remain in all others. It's a pretty pressing question at this point. They have to act.

Right but it already NOT on the list of cases they will see this session so the only two alternatives is for them to reject seeing thereby letting stand the rejection of DOMA in two more states OR to put it back on the list but not hear the case thereby postponing a decision. They announced friday they will not hear it but have yet to decide the other... we will know Monday whether they rejected it or not.

[RazorzEdge88]

They can easily decide to hear one of the DOMA cases on December 7th.

[JockBoy87]

There will be no sweeping decision -- it will be on the narrowest grounds possible. I anticipate per curiam affirmance of the Ninth Circuit and of DOMA repeal.

I very much doubt a per curiam decision on anything. The justices are going to write their names all over this.

Also, the court will not "uphold" the lower court decision; it will merely not grant certiorari. They are not the same thing. To uphold the lower court decision would be much more significant, i.e. a Supreme Court precedent, which will not happen.

[bankside]

I very much doubt a per curiam decision on anything. The justices are going to write their names all over this.

Also, the court will not "uphold" the lower court decision; it will merely not grant certiorari. They are not the same thing. To uphold the lower court decision would be much more significant, i.e. a Supreme Court precedent, which will not happen.

I take it that represents the difference between concurring in the lower court's decision (without expanding it nation-wide) and merely declining to hear the case (thus having the same effect locally but without giving it their imprimatur)?

If that is the case, it would seem to represent a desire to limit a very strong, thorough and well-reasoned decision to California, while waiting for the opportunity to overturn it by hearing a less thorough and flawed decision from another circuit. Would represent Scalia saying "Not even I can overturn the California decision, but if we wait, another circuit will be more sloppy and then we will strike. Delivering California to the Sodomites is a small price to pay."

Or something like that. Picture force lightening coming from his fingertips.

[JayHawk]

Okay so if they do not grant certiorari does that then mean that the lower court decision stands?

Perhaps they are waiting for Dec 7th to announce hearing the case and then the new congress will be in session when they decide to overturn DOMA.

[xbuzzerx]

Okay so if they do not grant certiorari does that then mean that the lower court decision stands?

Perhaps they are waiting for Dec 7th to announce hearing the case and then the new congress will be in session when they decide to overturn DOMA.

I believe so. The Supreme Court not granting certiorari to my understanding is equivalent to them saying this is not a matter the Supreme Court needs to decide, which is the same thing as saying the lower court handling the decision was the appropriate jurisdiction.

[JayHawk]

Right which according to JockBoy isn't saying it stands I guess... thank god I didn't get into law because that is some baffling bullshit.... lol

[bankside]

I believe so. The Supreme Court not granting certiorari to my understanding is equivalent to them saying this is not a matter the Supreme Court needs to decide, which is the same thing as saying the lower court handling the decision was the appropriate jurisdiction.

But it still leaves them an out to decide it later, by picking a case which is better suited to their prejudices.

[xbuzzerx]

But it still leaves them an out to decide it later, by picking a case which is better suited to their prejudices.

Of course, it's not that the Supreme Court is saying "this ISSUE is something inappropriate for the Supreme Court", they're saying the particular case isn't in their jurisdiction. You get a different case covering the same issue and it may be Supreme Court material. Say something like California recognizes gay marriage & full medical and property rights, and one of the couples is hospitalized in Nevada and they refuse to let the spouse anywhere near the room. We need a case like that.

[RazorzEdge88]

Of course, it's not that the Supreme Court is saying "this ISSUE is something inappropriate for the Supreme Court", they're saying the particular case isn't in their jurisdiction.

Actually, it's not even necessarily that. It's often their way of saying "this isn't a particularly important matter."

[JockBoy87]

Right which according to JockBoy isn't saying it stands I guess... thank god I didn't get into law because that is some baffling bullshit.... lol

The Supreme Court isn't saying anything other than it's not getting involved when it doesn't grant cert. No judgement on the matter is made whatsoever.

[JayHawk]

Right but that does mean the lower courts ruling stands because it has not been overturned correct? SO while not affirming the ruling nor overturning it they (SCOTUS) do understand the net affect is acceptance of the ruling.

[JayHawk]

Okay i found something that explains it a bit further...

High court leaves open if it will take up gay marriage case

If the court does not issue an order on the gay marriage cases on Monday, it could relist the cases for further consideration at its weekly conference next Friday. The justices will sometimes hold particularly complex cases for a future conference if they need more time to figure out what course of action to take.

For some reason I had the understanding that Friday they did not list the cases which gave the speculation they would punt back to the Circuit....

[Just_Believe18]

I have no idea. I don't know the specifics to all of them, but I am anxiously awaiting the decision tomorrow.

[xbuzzerx]

Right but that does mean the lower courts ruling stands because it has not been overturned correct? SO while not affirming the ruling nor overturning it they (SCOTUS) do understand the net affect is acceptance of the ruling.

Basically yes, and definitely for that particular case. It doesn't mean they won't hear another case covering almost exactly the same subject material at a later time, but it will probably have to be one that more clearly falls into Supreme Court territory, like conflicts of the laws between two states.

[JockBoy87]

Right but that does mean the lower courts ruling stands because it has not been overturned correct? SO while not affirming the ruling nor overturning it they (SCOTUS) do understand the net affect is acceptance of the ruling.

Yes.

Federal district courts have what is called original jurisdiction in matters of equity. That means they and they alone conduct civil trials, and their rulings are final and immutable unless reviewed. Appeals are with few exceptions not a right, and in most cases higher courts decline to interfere. Therefore, when certiorari is denied, the original ruling remains final.

Note that a denial of cert is quite different than a dismissal or summary judgment, which happened in Baker v. Nelson (1972), one of the damaging precedents that stands against our side. In that case the appeal was a right. The Supreme Court did not hear a full appeal, but issued a precedent making dismissal because the case had automatically gone before the court.

Before the Supreme Court denies certs, they certainly have reviewed those cases, even if only by summaries prepared by their clerks, so they know the ramifications of their decisions. Because they are taking so long to decide these cases, I think they are looking very hard at the political implications of their decisions.

[JockBoy87]

None of the marriage cases appear in today's order list:

http://www.supremecourt.gov/orders/c...12zor_6k47.pdf

The next conference is on December 7.

[JayHawk]

This is freaking maddening.

[RazorzEdge88]

This is terribly frustrating. The people at prop8trialtracker are losing their minds this morning. I can't say I totally blame them. If the result of these delays is just to affirm the Ninth Circuit's ruling, this is a waste of time.