SCOTUS to take up Prop 8, DOMA cases

The Supreme Court announced that it will take up two gay marriage cases, and will likely reach a decision in June

By Jillian Rayfield
December 8, 2012 1:34AM (UTC)
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The Supreme Court announced that it will hear arguments about Proposition 8 and the Defense of Marriage Act.

Proposition 8 is California's ban on gay marriage, which a lower court ruled is unconstitutional under the 14th Amendment. The Court said it would rule on whether the 14th Amendment bars the state from defining marriage as between a man and a woman. The justices will also decide whether supporters of Prop 8 have standing in this case; if not, the Court would lack jurisdiction to decide it.


The Court said it would also take up one of several DOMA cases, this one brought by Edith Windsor, challenging section 3 of the law, which defines marriage as only between a man and a woman for the purpose of receiving federal benefits. The Supreme Court will decide whether or not to uphold the Second Circuit's ruling that the law was unconstitutional because it violated the equal protection guarantee of the 5th Amendment.

As with Prop 8, the Justices will also consider whether to refrain from reviewing the merits of DOMA; they will decide "whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case."

House Republicans elected to continue to defend DOMA since the Department of Justice announced in February, 2011 that it no longer would. When the DOJ declines to defend a federal law, House leadership votes whether or not to take up the reins, through BLAG. So far, Republicans have spent around $3 million on DOMA's defense, and are represented by former Solicitor General Paul Clement (who also argued against Obama's health care law before the Supreme Court).


SCOTUSblog, which first reported on the orders, expects that the Court will hear the Prop 8 and DOMA cases March 25-27, and will likely make a decision by June 27.

In a phone call with reporters, Ted Olson and David Boies, the attorneys who argued the case against Proposition 8, praised the Court's decision to take up the case and called it the "perfect vehicle" to address the constitutionality of gay marriage bans.

"There no justification for this discrimination, and [you] ought to have marriage equality as a constitutional right everywhere," said Boies.


Olson said he's "not going to speculate about which justices may have voted what way" about whether to take up the case, but addressed the standing issues that potentially give the justices an out: "We think that they will probably get to the merits notwithstanding the standing issue."

The National Organization for Marriage was also pleased with the Supreme Court's decision to hear argument on the Prop 8 case. “We believe that it is significant that the Supreme Court has taken the Prop 8 case,” said NOM Chairman John Eastman in a statement. “We believe it is a strong signal that the Court will reverse the lower courts and uphold Proposition 8. That is the right outcome based on the law and based on the principle that voters hold the ultimate power over basic policy judgments and their decisions are entitled to respect.”

Jillian Rayfield

Jillian Rayfield is an Assistant News Editor for Salon, focusing on politics. Follow her on Twitter at @jillrayfield or email her at

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