Several possibilities remain for Supreme Court

by Brian Leubitz

We are heading into the last few weeks of the Supreme Court’s session, which typically ends in the last few days of June. June 24 is the last calendared day, but it is not uncommon to see the close of the session drift a few days back. With that in mind, a few folks are summarizing what could happen. Howard Mintz has a quick such article in today’s SJ Merc.

To summarize, there are basically four different outcomes. From best to worst case scenarios, here is what we are looking at with some help from the office of City Attorney Dennis Herrera:

• We win on the merits. This is the best case scenario and could possibly end most of the litigation surrounding marriage equality. In short, that would be the U.S. Supreme Court reaching the merits of Proposition 8’s constitutionality and affirming the Ninth Circuit decision invalidating California’s measure. Any victory on the merits restores marriage equality in California.  But, of course it isn’t that simple, there are a couple options within this scenario.
  • Beyond California, the Court could hold that all state bans on same-sex marriage are invalid (i.e., legalizing same-sex marriage nationwide);
  • Separate but unequal: Court could rule that states with civil union and domestic partnership laws must require full recognition for marriage rights for same-sex couples (i.e., legalizing same-sex marriage in several more states, including: Colorado, Illinois, Minnesota, Nevada, New Jersey, and Oregon).  
• Punting the case: The Supreme Court ‘DIGs’ the case. In the next scenario, the U.S. Supreme Court dismisses the case, leaving the Ninth Circuit’s ruling that Prop 8 is unconstitutional as the final, binding decision.  In lawyer parlance, this outcome is called a “DIG” — for “Dismissed as Improvidently Granted” — and it occurs when at least five justices agree that the petition for certiorari (or review) should never have been granted (it takes only four of the nine justices to grant review).  Though DIGs aren’t typical, it’s notable that Justices Kennedy, Breyer and Sotomajor all questioned in oral arguments whether review should have been granted.  This outcome would apply solely to California.  But it would remove any prospect that a party hostile to marriage equality would challenge whether the ruling applies statewide.
• Standing: The Supreme Court holds that Prop 8 backers lacked standing. In the next scenario, the U.S. Supreme Court rules that the Prop 8 proponents lacked standing under federal law to appeal the U.S. District Court’s decision.  Such a decision would vacate the Ninth Circuit opinion, leaving U.S. District Court Judge Vaughn Walker’s ruling that Prop 8 is unconstitutional as the final, binding decision.  Prop 8 is held unconstitutional in this scenario, but parties hostile to marriage equality might seek to litigate over whether the District Court ruling applies statewide.  Already, Prop 8 proponents and some ill-informed pundits have argued that such a ruling on standing should limit the judgment to only the two couples (who are named plaintiffs in the suit), or to the Counties of Alameda and Los Angeles (which are named as defendants in the suit).  Those arguments are wrong, but certain to get litigated if the case is dismissed for standing in this fashion.
• Losing: Here, a majority of U.S. Supreme Court justices agree to reverse the Ninth Circuit, upholding Proposition 8 as valid under the U.S. Constitution’s equal protection guarantees.  This would settle the legal question about Prop 8, though the larger debate about marriage equality in California would likely shift from the legal arena to the political realm.