Bench Memos

Prop 8 Case Not on Today’s Supreme Court Orders

Today’s Supreme Court orders list did not have any order concerning Hollingsworth v. Perry, 12-144, the case challenging the constitutionality of California’s Proposition 8, where voters defined marriage as one man and one woman in the California Constitution. Because the case was on the conference list for last week, it means that the justices decided to pull the case off the calendar for some further consideration.

Today’s actions indicate that the justices are going to wait to decide whether to hear the Prop 8 case with its consideration of several cases challenging the constitutionality of the federal Defense of Marriage Act. The leading case there is the Gill case from the First Circuit (12-13). It is likely that the Supreme Court will take the Gill case because in that case, a federal appeals court struck down a federal statute, which means federal DOMA is a valid law in some parts of the country but not in the states of the First Circuit. What everyone is watching for is whether the Supreme Court takes the challenge to federal DOMA alone, or includes the Prop 8 case as well.  Stay tuned.

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