The Supreme Court announced today that it will take up the Prop 8 case and one of the several DOMA cases. The next step in the review process for both cases is a scheduling order, which should come soon, laying out the date for oral arguments at the Supreme Court.
Today we rejoice in this opportunity for our Justices to affirm our Constitution's promises of liberty, equality and human dignity as we watch the arc of the moral universe continue to bend toward justice.
When viewed through a longer lens, it becomes clear, to me, at least, that the DOMA cases will have a huge impact on marriage equality in the U.S., whereas the Prop 8 case will be an important but less integral part of a natural progression.
At the very least, because of the civil-unions issue, it it clear that a DOMA decision at the Supreme Court before a Prop 8 decision would be a more logical one, because striking down DOMA would affect future Prop 8 litigation, but striking down Prop 8 would have no effect on DOMA.
DOMA radically changed the status quo for American marital law (at least for gay and lesbian couples), and the Supreme Court may very well look favorably upon restoring the traditional federalism of state marriage rights that existed before DOMA was enacted.
The federalism claims that the DOMA cases make are relatively comfortable waters in which the Supreme Court's conservative justices can swim. Judge Reinhardt's Prop 8 analysis, on the other hand, however cautious it may be, is essentially a brand-new constitutional argument.
I firmly agree that the best possible outcome for marriage equality in the next year or so is for the Supreme Court to consider the DOMA cases, uphold the lower courts' rulings striking down the law, and decline to hear the challenge to the Ninth Circuit's Prop 8 decision.
As always, there is a steady stream of comments and questions about the decision and the future of the Perry v. Brown case challenging the constitutionality of Proposition 8. This post addresses the most common ones.
With rulings on gay marriage from two federal appellate courts in the past week, it is now more likely that the Supreme Court will finally grapple with the key civil rights issue of our time. We are in a stage where timing, litigation strategy, and judicial politics will all be critical.