October 29, 2012 | by Chris Johnson
Supreme Court to consider on Nov. 20 whether to take up marriage lawsuits

The Supreme Court could decide next month whether to review challenges to California’s Proposition 8 and the Defense of Marriage Act that would have an immediate impact on same-sex couples across the nation. The court announced Monday that justices have scheduled on Nov. 20 whether to consider lawsuits challenging the measures.

According to the Supreme Court’s website, justices have docketed the case of Hollingsworth v. Perry, the lawsuit contesting Prop 8, for their conference on Nov. 20. Also docketed for that conference are the four DOMA lawsuits that were already pending before the court: the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services; Windsor v. United States; Golinski v. Office of Personnel Management; and Pedersen v. Office of Personnel Management.

The court’s decision on whether to take up the Prop 8 case is particularly significant because if justices declined to do so, same-sex couples would be able to marry again in California almost immediately just as soon as the U.S. Ninth Circuit Court of Appeals issues a mandate saying its earlier ruling striking down the amendment is now in effect.

According to the American Foundation for Equal Rights, which filed the lawsuit against Prop 8, the Supreme Court is expected to issue an order list detailing its decisions on cases it has granted or denied review on this conference by Nov. 26.

It takes a vote of four justices to grant a writ of certiorari (to take up a case) but the decision will be put off if any one justice wants more time to decide. The Supreme Court had previously docketed the Prop 8 case, which was filed by AFER, and the Windsor challenge against DOMA for their Sept. 20 conference, but didn’t make a decision on those lawsuits at that time.

It’s possible that justices could continue to hold off on issuing a decision, although legal observers have said they were likely waiting until all the DOMA cases and the Prop 8 case were fully briefed before making a decision and are more likely to do so at this time.

Adam Umhoefer, AFER’s executive director, said in a statement the court’s decision to schedule the Perry case for Nov. 20 brings same-sex couples in the Golden State once step closer to enjoying the right to marry.

“For far too long, gay and lesbian couples in California have been waiting to exercise the fundamental freedom to marry that the United States Constitution already tells them they have,” Umhoefer said. “With the distribution of our case for the court’s consideration, we move one step closer to the day when the nation will be able to live up to the promise of liberty and equality enshrined in our constitution, and all Americans will be able to marry the person they love.”

If the court decides to take up the Prop 8 case, justices will evaluate whether the state constitutional ban on same-sex marriage violates equal protection afforded under the Fourteenth Amendment of the U.S. Constitution.

The situation with DOMA is slightly different because advocates say justices are widely expected to take up at least one case challenging the anti-gay law, which prohibits federal recognition of same-sex marriage, to make a nationwide ruling on the statute.

The court’s decision to docket the case for the Nov. 20 comes on the heels of a filing from the Obama administration last week in which the Justice Department called on the court to make the Windsor case its priority among other cases challenging DOMA.

In that case, the U.S. Second Circuit Court of Appeals became the first appellate court to determine that DOMA is unconstitutional by applying a more rigorous standard of heightened scrutiny in evaluating the law.

But the marriage cases aren’t the only LGBT-related cases that the Supreme Court has docketed for its Nov. 20 conference. Justices have also scheduled whether to take up Arizona Gov. Jan Brewer’s (R) appeal of an federal district court injunction prohibiting her from enforcing a law that took away domestic partner benefits from state employees. The case is called Brewer v. Diaz.

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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