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Supreme Court Maneuvering on Same-Sex Marriage Cases

August 20, 2012

We now have four same-sex marriage cases before the Supreme Court:  three essentially identical Defense of Marriage Act cases and one California Proposition 8 case.  The question in the DOMA cases is whether the federal government may constitutionally refuse to recognize same-sex marriages that are legally performed in the states.  The broader question in the Prop 8 case is whether a state may constitutionally refuse to perform same-sex marriages.

Given the importance of the same-sex marriage issue, I think it is likely that the Supreme Court will agree to consider at least some of these cases.  I think it is likely that the Supreme Court will ultimately divide in favor of same-sex couples on the DOMA question but against same-sex couples on the broader question, leaving the issue to be battled out state by state.

The preliminary briefing began on June 29, when the DOMA losers in Massachusetts v. United States Department of Health and Human Services asked the Supreme Court to review that case.  The briefing has continued largely without notice – attention has been focused on the Supreme Court’s first conference of its next term, on September 24, 2012, the first date when the Court might decide which of the cases it will hear.

But along the way, an interesting but unnoted quirk of timing has occurred.  The House of Representatives, which is defending DOMA after the Obama Administration declined to defend it further, obtained extensions of its deadlines to submit its preliminary briefs in two DOMA cases.  The deadlines, which were August 2 in Office of Personnel Management v. Golinski, and August 23 in Windsor v. United States, are now both August 31.

On the surface, this seems unimportant.  Lawyers are always asking for more time to prepare court filings. Furthermore, the deadline for submission of preliminary briefs by marriage equality opponents in the Prop 8 case, now known as Hollingsworth v. Perry, was already August 31.  Since it is likely that the Court will look at both the DOMA cases and the Prop 8 case together in deciding which ones to hear on the merits, there’s a certain logic to the House’s request for an extension of time to August 31.

But cynics are noting that August 31 just happens to fall right in between the Republican and Democratic national conventions.  The aforementioned cynics are wondering if the House’s request for extension of its deadlines has less to do with the demands of legal briefing and more to do with the potential for the cases to further Mitt Romney’s presidential ambitions.

This of course begs the question how the August 31 deadline came to be in Hollingsworth v. Perry in the first place.  That case was decided by the Ninth Circuit Court of Appeals (in the name of Perry v. Brown) on June 5, 2012.  The losing side – the defenders of Prop 8 – therefore had until September 4 to petition the Supreme Court to hear the case.  They petitioned early, on July 30, thereby making August 31 the deadline for opposition briefs.

Legally and procedurally, none of this makes any difference at all.  The Supreme Court distributes briefs to the justices 10 days after all the briefs are in, which will be plenty of time for the justices to decide at the September 24 conference which cases to hear, if they are so inclined.

But politically, I’m guessing that President Obama’s refusal to defend DOMA will be the subject of Republican attacks – if not at the Republican convention, then on August 31 when the House files its briefs, in an effort to put the Democrats on the defensive during their own convention.

With national polling now showing support for same-sex marriage at or just above 50 percent, it remains to be seen whether a Republican push on same-sex marriage helps Romney or hurts him.

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