Bench Memos

More Details on DOMA and Prop 8 Grants

Ed Whelan has noted that the Supreme Court granted cert today in cases challenging DOMA and California’s Prop 8. For those who thought the recent election wasn’t about social issues, these cases are a reminder that the president’s biggest impact on the culture of this country is through his Supreme Court appointments. For better or for worse, the courts have become the final arbiter of the most vital cultural questions our country faces today.

The two cases will determine whether the federal government has the right to limit its own definition of marriage to a man and a woman, as well as whether states can constitutionally do the same. It should be another exciting spring as we wait to learn whether the Constitution requires a definition of marriage that would have been completely foreign if not repugnant to its Framers.

The Court had many options when choosing which challenge to the Defense of Marriage Act to consider. Unfortunately, the case with the cleanest presentation of the legal issues — Gill v. OPM (Ed discussed it in detail here) — was also one in which Justice Kagan is recused. Presumably as a result, the justices chose to hear a different case, Windsor v.  United States (Again, Ed’s great analysis is here). This may have been a simple desire to avoid the possibility of a 4–4 decision. It could also have been a regrettable ideological preference for keeping Justice Kagan on the bench for this landmark issue.

Justice Kagan’s uncharacteristically early involvement in Gill as solicitor general is an indicator that she already is a committed opponent of DOMA. Recusal rules may technically allow her to sit on the Windsor case because she was never involved in it directly, but she is hardly an unbiased, blank slate on this issue. 

The Court also granted cert in Hollingsworth v. Perry, the case holding California’s Prop 8 unconstitutional. The Ninth Circuit wrote a narrow decision in an attempt to sanitize the outrageous district court opinion striking down Prop 8, and in doing so it created a contorted rule it supposed would only apply to the facts of California’s history on this issue. Despite the broad language of the question presented, the Court is not likely to take this case as an opportunity to decide whether there is a fundamental constitutional right to same-sex marriage. Instead it will either be another smackdown for the Ninth Circuit and what Ed explained are its “manifest errors in disregard of [the Supreme] Court’s precedents,” or an endorsement of the one-way ratchet that court created for same-sex marriage. Under the Ninth Circuit’s novel rule, once a state legislature permits it or a state court imposes it, there is no going back. 

Oral arguments are expected to be scheduled for March, and the decision will probably not be ready until the tail end of the Court’s term in late June.

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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