SCOTUS Prop 8 decision

[bluedaisyus]

The Supreme Court is supposed to decide tomorrow whether to hear the Prop 8 appeal, as well as several challenges to DOMA. Just an FYI.

[Deleted]

I knew it was this week but wasn't sure when, thanks for the heads up!

[joyseattle]

I've been following this and have heard that they will most likely accept an DOMA challenge for review but not Prop 8. We'll have to wait and see though...

[kershnic]

That would be my guess too, joy. We shall see.

[llama]

I am so nervous! In case anyone else is nerdy like me and wants additional details, I can provide a few. They are going to decide whether to hear each of the LGBT related cases up for review and are supposed to announce Monday. Some sources are saying that if the cases ARE going to be heard we may have to wait longer than Monday to find out (in other words, news of cases being declined for review might get to us sooner than news of granted reviews.)

Joy is right that they're likely to take at least one of the DOMA challenges (or possibly a couple and roll them into one oral argument session - the Windsor case from the 2nd Circuit is the favored case for this in legal circles.) The reasoning is that the DOMA cases would actually set precedent relevant to other states and jurisdictions; as it stands now if all the cases are declined by SCOTUS section 3 of DOMA would be struck down only in the jurisdictions of the 1st and 2nd Circuit Courts, which cover a variety of states between them... but it would still exist in other states, which would be kind of weird and complicated.

With Prop 8, it is expected they will decline to review the case because the issue at stake has a very limited purview. It is the same reason why many of us who follow LGBT law don't really care that much wither way whether the case is granted review. It is seriously unlikely that SCOTUS would use the case to legalize marriage equality in states other than CA or to find a constitutional right to same-sex marriage outside of the specifics of what happened in CA (state supreme court decision, people getting married right away, prop 8 passing, etc.) We don't have a whole lot to gain from a decision reaffirming the narrowed ruling of the 9th Circuit. And plus, if the case is declined review, same-sex marriage would become almost immediately legal in CA again, pending the processing of some paperwork by the 9th Circuit, which is expected to happen quickly. That is a big bonus. A granted review in the Prop 8 case would make people nervous because it could potentially signal that they plan to reverse. HOWEVER, if they reverse on standing alone (that the pro-Prop 8 people should not have been allowed to take over appealing the case when the California state government dropped it) the lower court ruling by Judge Walker would still remain, so we'd still get marriage equality back in CA. It is not all doom and gloom from a review! But it would drag the process out for a while and make it a lot less straightforward, which is kind of nervewracking.

I am so nervous! I am going to be nailbiting all day tomorrow and this weekend waiting to find out the results. (Nerd alert!!)

[hensmum]

Thanks for all those details, llama! Ah, some more good news would be really really welcome to continue our streak from the election!

[kershnic]

as it stands now if all the cases are declined by SCOTUS section 3 of DOMA would be struck down only in the jurisdictions of the 1st and 2nd Circuit Courts, which cover a variety of states between them... but it would still exist in other states, which would be kind of weird and complicated.

I've been trying to figure this out for a while.... does this mean that people who live in the jurisdictions of the 1st and 2nd circuit courts could then file joint federal taxes, not be taxed on health insurance for a spouse, etc. start immediately? But same-sex couples who live outside those jurisdictions would still be considered single, same old DOMA rules?

[bluedaisyus]

Nov 30, 2012 8:43:14 GMT -5 kershnic said:

as it stands now if all the cases are declined by SCOTUS section 3 of DOMA would be struck down only in the jurisdictions of the 1st and 2nd Circuit Courts, which cover a variety of states between them... but it would still exist in other states, which would be kind of weird and complicated.

I've been trying to figure this out for a while.... does this mean that people who live in the jurisdictions of the 1st and 2nd circuit courts could then file joint federal taxes, not be taxed on health insurance for a spouse, etc. start immediately? But same-sex couples who live outside those jurisdictions would still be considered single, same old DOMA rules?

From what I understand yes, that is essentially what would happen. But feel free to correct me, anyone!

[llama]

Nov 30, 2012 9:12:31 GMT -5 bluedaisyus said:

Nov 30, 2012 8:43:14 GMT -5 kershnic said:

I've been trying to figure this out for a while.... does this mean that people who live in the jurisdictions of the 1st and 2nd circuit courts could then file joint federal taxes, not be taxed on health insurance for a spouse, etc. start immediately? But same-sex couples who live outside those jurisdictions would still be considered single, same old DOMA rules?

From what I understand yes, that is essentially what would happen. But feel free to correct me, anyone!

Yup. Weird, right? You can kind of see why they'd want to avoid that. It also may mean that legally married same-sex spouses in those jurisdictions could petition for marriage-related immigration status. If I am visualizing it correctly, most of the jurisdictions that allow same-sex marriage CURRENTLY are covered by the 1st and 2nd districts (Iowa isn't, nor is DC, or California for the couples married there before Prop 8) but the newer states like Washington and Maryland wouldn't be covered in that case, so it is actually a trickier scenario now that we have more states that allow it.

It has happened before that they've allowed something like this to stand. I don't remember the details, but for a while the 9th Circuit had controlling precedent for its jurisdiction that military dismissals based on sexual orientation alone were unconstitutional and I think SCOTUS declined review on the case which left it until DADT was repealed by Congress.

[kershnic]

Despite precedent on something more narrow like DADT, it seems like this would create a much larger, more complicated mess for many more people. In addition to Iowa, DC, California there would be civil union states - such as NJ, where out-of-state legal same-sex marriages are automatically recognized as civil unions. Yay for fiand resident taxes in NJ as civil union, non-resident taxes in NY as married, and federal taxes as single. Maybe we should move across the river into the 2nd circuit court district.

[llama]

Nov 30, 2012 13:46:26 GMT -5 kershnic said:

Despite precedent on something more narrow like DADT, it seems like this would create a much larger, more complicated mess for many more people. In addition to Iowa, DC, California there would be civil union states - such as NJ, where out-of-state legal same-sex marriages are automatically recognized as civil unions. Yay for fiand resident taxes in NJ as civil union, non-resident taxes in NY as married, and federal taxes as single. Maybe we should move across the river into the 2nd circuit court district.

Yeah, it would be very weird, especially in states like RI that recognize but don't perform ssm. Would couples in those states who are legally married in others have to file single or married federal taxes? But the Supreme Court is technically not supposed to focus much on the logistical issues of the situation, so the federal government would be left trying to figuring out what to do. They'll probably accept one of the DOMA cases, though, so all of this will be moot.

In case anyone is reading for an update:

No word today on the acceptance of any LGBT-related cases for SCOTUS review. I am reading a few things: the first is that they usually release cases granted review on the Friday and cases denied review Monday. That means that we could hear something Monday assuming they did deny cert in any of these cases. It could also mean that they didn't get a chance to decide the fate of all or some of the cases during today's session. The next (last) session is Dec. 7th, so they could conceivably revisit the cases if it is indeed true that they couldn't reach a decision about them today. It is also possible they could have reached a decision to reject the cases not related to DOMA (like the Arizona case and Prop 8) but couldn't decide what to do about the DOMA cases, in which case we may hear that some cases were declined on Monday but not have answers about the full range of possible cases until after Dec. 7th. THIS IS ANNOYING.