Ballot victories on marriage could impact Supreme Court

The U.S. Supreme Court will determine whether it’ll take marriage cases in Nov. 30. (Washington Blade file photo by Michael Key)

Legal experts agree the Election Day victories for same-sex marriage in four states will have an impact on the Supreme Court as it weighs challenges to California’s Proposition 8 and the Defense of Marriage Act — although just how the outcome of those ballot questions will influence justices remains under debate.

Following election results in which voters in Maine, Maryland and Washington legalized same-sex marriage and Minnesota rejected a constitutional amendment banning same-sex marriage, the Supreme Court determined a new date — Nov. 30 — for deciding whether to take up the cases as opposed to deliberating them during its Nov. 20 conference. That means an official announcement on whether the court will take up the litigation will be made by Dec. 3.

In addition to the case challenging Prop 8, Hollingsworth v. Perry, four cases challenging DOMA are pending before the court: Windsor v. United States, the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services, Golinksi v. Office of Personnel Management and Pedersen v. Office of Personnel Management.

Jon Davidson, legal director for Lambda Legal, said the legalization of same-sex marriage at the ballot in three more states makes the court more likely to take up the constitutionality of DOMA — and for the court to strike it down — because now additional states will be impacted by the federal ban on the recognition of same-sex marriage.

“I believe that they have to do that because of the rules of the First Circuit and the Second Circuit,” Davidson said. “If the court doesn’t take up DOMA, those decisions will go into effect at the federal level and the federal government would have to start honoring marriages entered into New York and New England, but not elsewhere, and that’s not really a tenable situation.”

But the impact the results will have on the Prop 8 case  seems murkier. Some experts say it could prompt the court to allow a U.S. Ninth Circuit Court of Appeals striking down the measure to stand and others say it prompt to justices to take up the case to uphold the measure.

Doug NeJaime, a law professor at Loyola Law School, said the election results may prompt the Supreme Court to decline the Prop 8 challenge because they’ll want to wait to hear a marriage case after more states have decided the issue.

“I think the court could think we’re going to let this keep happening, we’re eventually going to get a case like this and we’d rather take it after more states have voted for same-sex marriage,” NeJaime said.

John Eastman, chair of the anti-gay National Organization for Marriage, said he doesn’t think the four wins for same-sex marriage will be favorable to Prop 8 opponents because they pale in comparison to 32 previous victories in favor of marriage as one man, one woman.

“What we’ve now got is three states in other direction, which are still the outliers,” Eastman said. “At least under what Justice Kennedy has said before. That’s not the kind of overwhelming trend that would suggest he might weigh in differently. You might also say that the fact that a couple of states have gone the other direction shows that there is a political process option to work this thing out.”

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.

In addition to the marriage cases, the Supreme Court has also rescheduled for Nov. 30 a discussion on whether it will take up another LGBT-related case: Brewer v. Diaz. Arizona Gov. Jan Brewer’s (R) appealed to justices a federal district court injunction prohibiting her from enforcing a law that took away domestic partner benefits from state employees.