Supreme Court Delays Consideration of Marriage Cases for Ten Days
BY PAUL SCHINDLER | Several cases involving the right of same-sex couples to marry –– in the context of both the Defense of Marriage Act (DOMA) and California’s Proposition 8 –– could go before the US Supreme Court in the current term.
The Washington Post reports that the high court has delayed a conference on whether to take up the cases by ten days, from November 20 to the last day of the month.
On Prop 8, the Supreme Court faces an appeal of a Ninth Circuit appellate ruling that upheld District Court Judge Vaughn Walker’s 2010 ruling that struck down the 2008 voter referendum.
Walker’s sweeping decision found that same-sex couples have an equal protection and due process right to marry under the 14th Amendment. The Ninth Circuit panel, in a 2-1 ruling, ruled more narrowly that the enactment of Prop 8 violated the Equal Protection Clause because voters had no rational basis to rescind the right of same-sex couples to marry previously recognized by the State Supreme Court while at the same time continuing to provide them with the state law rights and benefits of marriage.
If the high court declines to hear the case, the Ninth Circuit ruling would stand and marriage by gay and lesbian couples in California would resume, but the scope of its decision would likely not apply in any other jurisdictions. Should the Supreme Court take the case, it could rule on any of the questions raised by the litigation, not simply the position taken by the Ninth Circuit. Consequently, any ruling the court makes could have repercussions beyond the specifics of the California case.
On DOMA, the high court is considering several cases, including two appellate court rulings –– out of Boston and New York –– striking down the 1996 statute’s bar on federal recognition of marriages by same-sex couples in states where they are legal. The cases were decided on different grounds, so again the range of outcomes from a Supreme Court review is wide.
Given that two appeals courts have struck down DOMA, the Supreme Court presumably must take up this question in the current term. Should those rulings be allowed to stand, the federal government would face the untenable position of having to recognize same-sex marriage in two federal circuits –– including New York and New England –– but not elsewhere.