The wait continues for the Supreme Court to choose gay marriage lawsuits.
On Monday, instead of announcing which cases it would review, the high court said it would discuss in its Friday conference several cases surrounding the federal Defense of Marriage Act, as well as a lawsuit regarding a California state constitutional amendment.
The Proposition 8 case, Hollingsworth v. Perry, is eagerly watched because if the court denies review, gay marriages will promptly resume in California. Four justices must agree on a case for it to be heard.
Decisions about whether to accept or deny review any of these cases could come later Friday or Dec. 10. Alternatively, the high court could reschedule the cases for a future conference, as it has already done.
Court watchers speculate that while the high court could decline to hear any gay marriage cases, it is more likely to take one or more of them, given the disagreements in federal court rulings, and a comment made in September by Associate Justice Ruth Bader Ginsburg that it was “most likely” the issue would come before the court “toward the end of the current term.”
The dicier question is which cases will be heard: one or more DOMA cases, Hollingsworth, or several of these.
Protectmarriage.com, which petitioned the Supreme Court to take the Hollingsworth case, argued that in 2008 more than 7 million Californians “of all races, creeds, and walks of life” voted for Proposition 8 out of their belief that marriage, as the unique relationship between one man and one woman, should be upheld as the cornerstone of society.
The primary question for the Supreme Court is whether the U.S. Constitution prohibits the people of California from defining marriage in their state as the union of a man and a woman, said Protectmarriage.com and co-petitioners, including Dennis Hollingsworth and Gail Knight.
The American Foundation for Equal Rights (AFER) has asked the Supreme Court to deny review of Hollingsworth, saying that federal judges have correctly found Proposition 8 unconstitutional under equal protection and other provisions. The 9th Circuit Court of Appeals — which struck down Proposition 8 by a 2-1 decision — “did nothing more than restore to gay people the equal dignity of which Proposition 8 had divested them,” AFER’s lead lawyers Theodore Olson and David Boies argued.
Proposition 8, which says only marriages between one man and one woman are valid in California, immediately ended gay marriage in California, even though such nuptials had been permitted for several months after the California Supreme Court legalized it.
If the court rejects Hollingsworth, California state clerks, officials and gay couples are all preparing to resume gay nuptials, according to media reports.
At least six DOMA-related cases are listed for the Dec. 7 conference. These include cases involving gay individuals and couples, such as Karen Golinski, Joanne Pedersen, Edith Windsor, Nancy Gill and Joseph R. Diaz, as well as the Commonwealth of Massachusetts; all are seeking to have DOMA overturned.
DOMA, enacted in 1996, says that, for federal purposes, marriage refers to unions of one man and one woman. DOMA is being defended by the Bipartisan Legal Advisory Group of the House of Representatives.
If the high court decides to take any gay marriage cases, it will likely be summer before a decision is rendered.
In other gay marriage court cases: