Posted by: captainfalcon | December 8, 2012

Grants of Cert. in SSM Cases

1.  Here are the questions presented in Hollingsworth v. Perry, the challenge to California’s proposition 8.

2. Here are the questions presented in United States v. Windsor, the challenge to DOMA that arose in the Second Circuit.

My thoughts.

First, one reason the Supreme Court decided to grant cert. in United States v. Windsor instead of Massachusetts v. DHS, the First Circuit DOMA challenge, is that Kagan was Solicitor General during the early stages of that case and might have felt pressure to recuse herself. 

Second, as a friend of mine pointed out, the question presented in Hollingsworth is far broader than the question the parties presented in their petition for certiorari, which suggests that the Court is, at least, not interested in foreclosing a broad constitutional challenge to state prohibitions on same sex marriage, as opposed to a challenge based on the unique circumstances in California. [Update: this also leaves open an interesting possible pair of results — (1) uphold prop. 8 b/c states have exclusive right to define marriage as they see fit; (2) strike DOMA for the same reason.]

Third, in both cases the Court has asked for briefing on justiciability issues, so, as this post points out, they are giving themselves an escape hatch in case they decide they don’t want to reach the merits.

Fourth, the justiciability issues in Windsor strike me as complicated and potentially interesting.  Two questions are presented.  First, whether the fact that that the United States accepts the Second Circuit’s opinion striking DOMA means that the Supreme Court is deprived of jurisdiction to hear the case; second, whether the Bipartisan Legal Advisory Group (BLAG), which intervened,  prior to either the First or Second Circuit’s handing down their DOMA decisions, to defend the constitutionality of the statute after DOJ demurred, has standing as a constitutional matter.

This may be purely hypothetical, but it seems to me these questions come apart in interesting ways.  Specifically, if the Court decides that it doesn’t have jurisdiction to resolve Windsor on the merits then it simply dismisses the suit while leaving the First and Second Circuit opinions standing.  If, on the other hand, it decides that BLAG lacked constitutional standing then I think it must overrule the Second Circuit opinion because BLAG intervened in the suit before the opinion was handed down.  A defeat for BLAG thus becomes a victory for anti-SSMers.

Another interesting question is what impact the Court’s holding that BLAG lacked constitutional standing would have on the First Circuit opinion.  Presumably the Court could not also overrule that, because it hasn’t taken it, but could the First Circuit sua sponte void it?  Or would the issue of the precedential status of the First Circuit opinion simply have to be litigated in a future proceeding in the First Circuit e.g. arising from a federal denial of benefits to same-sex couples?

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