HRC Blog

Supreme Court Gets to Work – Waiting Game Begins

Post submitted by Brian Moulton, Former HRC Legal Director

Yesterday the nine justices of the Supreme Court held their first conference of the term and today announced six cases that they have agreed to review. While none of those are cases that will significantly impact the LGBT community, as you may know, there are a number of important cases that could have major ramifications in the fight for equality. This term, the Justices may take up cases about the discriminatory Defense of Marriage Act (DOMA) and California’s Proposition 8, as well as a case about domestic partner benefits for Arizona state employees.

Below is a little bit more about these key cases and what Court action (or inaction) on them could mean.  But one of the most important – and frustrating – takeaways is that it’s very hard to know what the Court will do, or when exactly it will do it, with any of these cases.     
What Cases Are Before the Court?  What Are They About?
First, the Court will decide whether to review Perry v. Brown (which it has docketed as Hollingsworth v. Perry), the case challenging the constitutionality of California’s Proposition 8, the state constitutional amendment that stripped gay and lesbian Californians of marriage equality.  Both a federal trial court and the Ninth Circuit Court of Appeals have determined that Prop 8 is unconstitutional, although the latter found that it was unique circumstances of California that made adopting Prop 8 a violation of the U.S. Constitution.  If the Supreme Court declines to review Perry, then the Ninth Circuit’s decision will stand and marriage equality will return to California.  If the Court takes the case, it wouldn’t be likely to hear oral arguments until early next year and issue a decision by the end of June; that decision could overturn the lower court’s decision in Perry, uphold it, or even broaden it – potentially having an even more sweeping impact on laws restricting the rights of gays and lesbians to marry.  
Second, the Court will decide whether to take any (or many) of a series of cases challenging the federal Defense of Marriage Act that have seen positive decisions in lower courts.  Furthest along in the process are two cases, Gill v. OPM and Massachusetts v. HHS, in which the First Circuit Court of Appeals has ruled that DOMA’s denial of federal recognition to lawfully-married same-sex couples violates the U.S. Constitution’s guarantee of equal protection of the laws. However, the Court has also been asked to review three additional DOMA challenges in which a federal trial court has ruled against DOMA, but a federal appeals court has not yet weighed in: Golinski v. OPM (from California), Windsor v. United States (from New York) and Pedersen v. OPM (from Connecticut).
If the Supreme Court declines to take the Gill/Massachusetts cases, the First Circuit decision would stand and apply to the states in that Circuit – Maine, Massachusetts, New Hampshire and Rhode Island.  If the Court declines to take any of the other cases with trial-court decisions, they would simply return to the regular appeals process and be heard by their respective federal Court of Appeal.  If the Supreme Court takes the case(s), again, oral arguments wouldn’t likely be until early 2013 and a decision wouldn’t come until later in the Court’s term, which ends in June.  If the Court hears the case and agrees with one or more of the lower courts, it could mean the end of DOMA’s denial of federal recognition to lawfully-married same-sex couples, ensuring they have equal access to the myriad rights, benefits and responsibilities under federal law that are designed to strengthen families.     
Third, the Court will decide whether to review Diaz v. Brewer, a case in which Arizona state employees challenged an attempt to strip them of domestic partner benefits after Arizona voters approved a discriminatory marriage amendment in 2008. A federal trial court ruled that doing so violates the U.S. Constitution’s guarantee of equal protection of the laws, and the Ninth Circuit Court of Appeals agreed.  If the Supreme Court takes the case – broken record – arguments would not happen until next year, with a decision sometime thereafter. If the Court declines to review the case, the Arizona public employees will be assured of their equal access to the family benefits they have earned. In either scenario, the Court’s actions could also have an important influence of LGBT public workers’ access to important benefits for their families, like health insurance coverage and retirement.    

So When Will We Know Something?
On Monday, October 1st, the Court will have its first oral arguments of the year, and will also issue a first list of cases that it will not take. We may learn something then… or we may not.  The Court will continue to consider the remaining cases at its (usually) Friday conferences, of which there are eight between now and the Court’s break for the winter holidays.  On the business day following the conference, the Court will issue another list of cases accepted and rejected.  So, unfortunately, we’ll just have to keep checking those lists to see if and when the Court might take one or more of these important cases… and then potentially have to wait again to see what the outcomes will be.  

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