Supreme Court Takes Up Marriage Cases

The Supreme Court has decided to take up the issue of same-sex marriage. In its Order list today, the Court announced it had granted certiorari in two cases:

  • Hollingsworth v. Perry (No. 12-144), the case arising from California’s Proposition 8
  • United States v. Windsor (No. 12-307), one of the cases challenging the constitutionality of the Defense of Marriage Act (DOMA)

In addition to the issues presented by the parties, the Court has asked for briefing on questions of standing: In Perry, whether the intervening defendants (private supporters of Proposition 8) have standing to defend Prop 8 under Article 3, section 2 of the Constitution; in Windsor, whether the Executive Department’s agreement that DOMA is unconstitutional deprives the Court of jurisdiction, and whether the Bipartisan Legal Advisory Group (BLAG) has standing to defend DOMA?

SCOTUSBlog provides background and briefs in both Hollingsworth and Perry. And it reports that oral arguments are likely to be scheduled for late March 2013, with a decision expected by the end of the current Term.

Anticipating the Court’s action today, one commentator has written that the marriage cases are “the most significant cases these nine Justices have ever considered, and probably that they will ever decide.” That is because, Tom Goldstein continues:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.