Supreme Court Defers Considering Prop 8/Article Argues Narrow Decision Permissible

“So when they ask me later, I won’t tell them how it’s going/But now my head is empty and the work load keeps on growing”

As readers probably know by now, the Supreme Court has rescheduled its consideration of the Proposition 8 litigation, now captioned Hollingsworth v. Perry.  The Court will now discuss whether to grant the Prop 8 proponents’ petition for certiorari (i.e., review of the decision by the U.S. Court of Appeals for the Ninth Circuit) at its (private) conference on November 30.  (The SCOTUS docket for the case is here.)  Although the Court is likely to announce shortly thereafter that it is granting or denying review, it is also possible that the Justices might keep the case in limbo until after it decides one or more challenges to the constitutionality of the so-called Defense of Marriage Act (DOMA) – which virtually all Court watchers including me are certain it will grant review in – even though there are some distinct issues in the DOMA challenges and the Prop 8 challenge. 

While we await word on the Court’s conference on Perry, here’s a link to a draft of Repealing Rights: Proposition 8, Perry, and Crawford Contextualized, a short piece I’m preparing for a symposium issue of the N.Y.U. Review of Law & Social Change, which hosted me at a live symposium (also featuring Rachel Maddow!) on “Making Constitutional Change: the Past, Present, and Future Role of Perry v. Brown” on October 5, 2012.  In it, I argue that Prop 8’s proponents and their supporting amici are wrong in claiming that one Supreme Court decision from 1982 affirmatively establishes the constitutionality of Prop 8’s targeted, partial repeal of marriage rights enjoyed by same-sex couples in California.  The proponents are therefore also wrong to maintain that the narrow, California-specific reasoning of the Ninth Circuit Court of Appeals is foreclosed by Supreme Court precedent.  It is not, and the Court would not act improperly if it were simply to deny review in Perry, leaving the Ninth Circuit judgment intact and finally clearing the way for same-sex couples to marry civilly in California.