Thanks to our friends at the Cert Pool we have word that the U.S. Supreme Court will again consider whether to grant cert in Dennis Hollingsworth, et al. v. Kristin M. Perry, et al (i.e. the case evaluating wheher California’s Proposition 8 passes federal constitutional muster) at their November 20, 2012 conference right before the Thanksgiving holiday. (The matter was set on October 29, 2012, before the victory of several same-sex marriage initiatives across the country and President Obama’s reelection).
If the Court grants cert, the earlier ruling from the Ninth Circuit striking down the measure (which affirmed a still-earlier ruling from then-Chief Judge Vaughn Walker) would remain stayed until it hears oral argument and issues a decision, which could be as late as next June. If it denies cert, the ruling from the Ninth Circuit would go into effect shortly–allowing same-sex marriage to resume in California. Or the Court could do what it did on September 24, the last time this was on for conference, and punt it to a new conference date.
I’m a contarian to the published conventional wisdom on this because I think the U.S. Supreme Court will take a pass and deny cert for the following reasons. The Ninth Circuit structured their decision affirming Judge Walker on several California-specific grounds, which weakens the argument that review is needed to address a conflict in federal law. (The cynic in me believes they did this on purpose). There’s a much stronger argument for the Supreme Court to hear the cases challenging the “Defense of Marriage Act” (“DOMA”), one because that’s an explicitly federal statute that has a material effect on things the federal government cares about (like taxes and benefits for government employees).
Let’s hope I’m right and the Supreme Court denies cert once and for all on November 20–and gives us all a good Thanksgiving.