Can There Be Any Doubt?
The Supreme Court is in conference today, considering certiorari petitions for ten cases addressing the issue of same-sex marriage. Eight of them are challenges to the Defense of Marriage Act, one of them is the challenge to California’s Proposition 8. In theory, the Court could decide these cases by allowing the various Circuit Court of Appeal decisions, which all favor same-sex marriage rights, to stand without further review by the High Court. And in the article I’ve linked above, experienced Supreme Court practitioner Amy Howe suggests that at least the Prop. 8 case might not be attractive for review, and notes that Justice Elena Kagan may recuse herself from several of the cases, which could have a significant impact on the outcome.
But is there anyone paying the scantiest bit of attention to the Supreme Court who really thinks that’s going to happen? My money is on certiorari being granted to all ten cases, and all ten cases being consolidated to at least some degree since they all deal with a substantially similar legal issue. We’ll know for sure either Monday or Tuesday, when the conference’s results are posted.
UPDATE: No orders were issued today, and no action was taken, so we may have to wait another week. There is speculation that the procedural complexity of ten cases raising related novel legal issues at the same time may be a reason for this, but it’s hard to say for sure. The Nine do not always explain themselves and the rest of us can only watch, and guess.