Today’s Rulings

by Ed Whelan

[9:10 a.m.: The Supreme Court will be announcing its rulings in the two marriage cases -- Prop 8 and DOMA -- today (as well as a ruling in a Hobbs Act case (Sekhar)). Beginning at 10 a.m., and relying on SCOTUSblog and How Appealing, I’ll post here the early word on today’s marriage decisions and links to the opinions, and I’ll update this post until both decisions have been announced. (I’m going to ignore the Hobbs Act case.) I’ll then read through the opinions and provide more extensive review and commentary in separate posts.]

[The marriage cases are the only cases remaining from the March argument calendar, and the Chief Justice and Justice Kennedy are the only justices who haven’t authored lead opinions from that calendar. So if all goes according to form -- and it might not -- the Chief will author the lead opinion in one of the marriage cases and Kennedy in the other. Scalia is expected to be the author of the Sekhar opinion. So if all goes according to form, the order of announcement of opinions would be Kennedy first in one of the marriage cases, then Scalia in Sekhar, then the Chief in the other marriage case.]

[For some background on the two marriage cases, see a short selection of my previous writings here.]

U.S. v. Windsor (Defense of Marriage Act): Kennedy opinion, 5-4. Strikes down DOMA on Equal Protection grounds (mingled with federalism). Dissents by Chief, Scalia.

Based on quick skim of syllabus, Kennedy opinion seems to combine confusion about federalism with Romer v. Evans-type discernment of animus.

Scalia, Chief, and Thomas would find no jurisdiction. All four dissenters would disagree with majority on merits.

Chief says federalism basis of ruling means that ruling has no clear implications for traditional marriage laws in the states. Scalia is more skeptical.

Hollingsworth v. Perry (California’s Prop 8): Opinion by Chief: Prop 8 proponents don’t have standing. 5-4. Dissent (on standing point only evidently) by Kennedy, joined by Thomas, Alito, and Sotomayor. That means that Ginsburg, Breyer, and Kagan found jurisdiction/standing in DOMA case but not in Prop 8 case. Hmmm.

We’ll see if there are some county clerks who will now be able to defend Prop 8. Look for California governor Jerry Brown to do all that he can to prevent any enforcement of Prop 8.

Consequences of no standing for district-court opinion below are disputed. See law professor Vik Amar’s analysis.

Overall: The DOMA case is a big victory for judicial lawlessness, and the Prop 8 case is a big victory for executive lawlessness (at the state level).

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