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Bench Memos

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DIGging the Prop 8 Case Would Make No Sense



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There is a lot of idle speculation that some justice might try to “DIG”—dismiss as improvidently granted—the cert petition in the Prop 8 case and thus spare themselves the burden of deciding the case. But, as an accomplished Supreme Court advocate has put it in an e-mail to me,

A DIG makes no sense as a matter of principle, of course. It is one thing for the Court to hold off on addressing a novel constitutional issue when the lower federal court ruling was consistent with the constitutional status quo. But when a lower federal court has broken new constitutional ground in striking down a state constitutional provision, that is normally an action-forcing event: the Court has traditionally felt an institutional obligation to have the final word before a state law is constitutionally invalidated.

I gather that it’s extremely rare for the Court to DIG a case in the face of substantial opposition (SCOTUSblog’s Tom Goldstein links to this 5-4 DIG in 1984), and I don’t see what plausible legal basis there is for a DIG here.

Moreover, the simplest way for the Court to continue to stay out of the way of the robust ongoing debate on marriage is to uphold the constitutionality of Prop 8 (and of DOMA) and to affirm that the question whether to redefine marriage to allow a man to marry a man or a woman to marry a woman is one that the Constitution leaves to the democratic processes.



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