SSM Goes to Washington

The USSC has granted cert. on two same sex marriage cases -- Prop 8 and the Windsor case (sexual orientation warrants intermediate scrutiny; very sympathetic elderly widow litigant) though they added questions regarding the standing of various parties to bring the cases and jurisdiction given the Administration's stance. Since Kagan had no apparent reason to recuse herself while she suggested she would in the 1CA DOMA case, it is not surprising that was taken.  The scrutiny question is a bit of a joker.  I'm somewhat surprised at Prop 8 and wary. 

I find it somewhat dubious that they will punt in that fashion though it's somewhat more possible in the Prop 8 case, I guess (DOMA as a federal law is a question that has to be decided eventually, Prop 8 only covers California, the legislature and governor supports SSM anyway).   SCOTUSBlog notes this as to the Obama Administration:

On the jurisdictional issue the Court raises re the government petition in DOMA (12-307): the SG has argued that, because DOMA is still on the books until its constitutionality is finally decided, it retains an obligation to enforce Section 3, so the 2d CA ruling involves a judgment against the United States, which gives it a right to appeal to the SCt, even though it agrees with the substantive outcome of the 2d CA decision.

Seems perfectly logical and the policy of not defending but enforcing is standard and set forth as a rule pre-Obama.  The standing of the House of Representatives [BLAG] might be more complicated, but it seems irrelevant if the Windsor herself is not obtaining benefits. SCOTUSBlog explains: "Mrs.Windsor has her own petition at the Court, but it did not figure directly in the Friday orders." As to the standing of the backers of Prop 8, well, I personally think they should have standing to defend a state ballot measure in place to get around executive/legislative opposition, but if they really want to, they probably can find a technicality.  As is, it just delays things further on that front.

[Just found some links to discussions on the standing issues that suggest that the Prop 8 intervenors have standing but BLAG (which is in effect representative of the leadership of the Republican caucus of the House, Democrats rejecting the litigation though Obama did welcome it to have the legal question settled) very well might not.  It is not the most "sexy" issue, but the standing questions here very well might be an important aspect of the case, especially respecting ballot measures that regular government officials wish to in effect nullify.]

While live blogging, SCOTUSBlog noted that the question posed by the Prop 8 plaintiffs was if "traditional" marriage can be protected by the state of California.  Traditional marriage has not be protected in that state for years.  The actual question set forth by the petition was "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman."  The actual ruling wasn't that broad -- e.g., the CA9 ruling suggested an alternative where the state went it slow, temporarily not recognizing SSM.  See, e.g., Hawaii, where the legislature was given the option to either recognize or not to recognize.  It is the way they went about it.* 

Meanwhile, I received an email from my junior senator, Sen. Gillibrand (who is already being put out there as a dark horse candidate in '16):

Momentum across the country is clearly growing towards recognizing the marriages of all loving and committed couples and finally putting the discriminatory DOMA policy into the dustbin of history. But even as DOMA heads to the Supreme Court, it is still incumbent upon Congress to pass the Respect For Marriage Act, which would not only repeal DOMA, but would also put in place much-needed protections for legally married same-sex couples.

Please sign my petition at repealDOMA.com to join the growing chorus of support for the passage of The Respect For Marriage Act and for the repeal of this discriminatory and unconstitutional law.

In addition to legislatively repealing DOMA once and for all, The Respect For Marriage Act, authored by my colleague Rep. Jerrold Nadler in the House, would also provide same-sex couples with the certainty that federal benefits and protections afforded straight married couples would be granted to them even if they were to move or travel to another state that doesn't recognize same-sex marriage.

That would be ideal.  See how DADT went down.

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* [Update] See, e.g., this analysis, the first of multiple ones promised at that blog.  I would add that this would provide, possibly, a means for one of the current SSM states to go backwards. Not that I wish them to do so or believe they should on basic constitutional equality grounds. A comment in a post at Volokh Conspiracy also is relevent here:

The Ninth Circuit panel took themselves to be answering the narrow question of whether a state, after offering full-fledged same-sex marriage as a matter of constitutional right, may then rescind that right solely with respect to the designation "marriage," leaving untouched all the associated substantive legal incidents of marriage (which are still offered to same-sex couples in California.) Thus, they held that while Baker may control the broader question of whether states may deny same-sex couples access to marriage, it did not control the merits of Prop. 8, arising as it did within the particular circumstances of California.

But, this thing is repeatedly going to be framed as a much larger question.  It ultimately is, not that the USSC has to decide it as that.