In their conference today, the Supreme Court has agreed to review the legality of California's Proposition 8, both its merits and whether or not the proponents had standing to appeal the federal court decision that struck it down. For now, though, gay marriages in California will have to wait a while more.
The justices have also agreed to take on one of the Defense of Marriage Act cases, Windsor v. United States, in which a widowed New York lesbian sued the government for having had to pay estate taxes upon her wife's death. But, for both cases, SCOTUS has given themselves a way out on ruling on the merits, and may still just issue decisions based on procedural questions, so there is still a chance that Prop 8 will get tossed back come summer.
Via the SCOTUS blog, some quick explanation:
It is clear that the Court has agreed to consider the merits case in Prop. 8, because that is what the petition presented as its question, but that it is also going to address whether the proponents had a right to pursue their case. If the Court were to find that the proponents did not have Art. III standing, that is the end of the matter: there would be no review on the merits of Proposition 8, or of the 9th CA decision striking it down....There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 on the merits, they may just opt out through one of the procedural devices they have offered up as potentials...
It is obvious now why the Court took as much time as it did: the selection process must have been rather challenging, and the compositon of the final orders equally so. The Court, one might say in summary, has agreed to take up virtually all of the key issues about same-sex marriage, but has given itself a way to avoid final decisions on the merits issues.
The issue of standing, the procedural question at issue in Prop 8, goes back to the CA Supreme Court's 2011 ruling that the proponents of Prop 8 did, as citizens, have a right to appeal a federal court's decision even though neither the governor nor the attorney general cared to support the appeal. The judges allowed the appeal to move forward, given that CA citizens have historically served as 'a check on representative democracy.' If SCOTUS reverses that decision, then they can wipe their hands of the Prop 8 mess, and gay marriages will resume in California, but the decision won't reverberate across all 50 states.
The 9th Circuit's stay on gay marriages therefore remains in place until the court rules on the procedural question, and potentially decides to rule on the merits. Legal experts are surmising that all of this complexity in today's wording, and the procedural ways out, are all because the justices don't yet have a five-vote majority agreeing to take on the merits, and therefore the constitutionality, of anti-gay marriage laws. So maybe Kennedy's still on the fence? In any event, no decisions are likely before June 27, 2013, and the cases will likely be heard in mid-March.
More on this as we learn it...
Update: The NYT is writing about this as a watershed moment for gay marriage, and ignoring the procedural questions altogether.
