With regard to the challenge to Prop. 8, the drama was less about what case was chosen but instead regarding whether the Court would take the case at all. The 9th Circuit's decision, Perry v. Brown (PDF) (Gov. Jerry Brown replaced Arnold Schwarzenegger as the name defendant), handed down in February, is somewhat controversial, in that the 9th Circuit panel of Judges Reinhardt, Smith and Hawkins avoided deciding the issue of whether any prohibtion on gay marriage violates the Equal Protection Clause. Instead the 9th Circuit chose to decide on the narrow ground the Prop 8 itself was motived by animus against a discrete group, running afoul of the consittutional prohibition articulated in Romer v. Evans.
Does the Court plan on taking on the broader question? And if not, why then take up the case? Is it possible the Court will reverse the Ninth Circuit? Perhaps reversal is possible, but it seems unlikely given Justice Kennedy, the author of Romer and Lawrence, will likely be the deciding vote. In the words of Roland Hedley, Jr., time will tell.
With regard to DOMA, the Supreme Court had a few vehicles to choose from, including the First Circuit decision (PDF) , where Judge Boudin relied upon state sovereignty and federalism concerns to strike down DOMA. Instead the Court granted cert for review of the broader opinion issued by the Second Circuit (an opinion authored by the conservative judge Dennis Jacobs) in United States v. Windsor (PDF). In Windsor, the court held:
[W]e conclude that Section 3 of the Defense of Marriage Act violates equal protection and is therefore unconstitutional.By choosing Windsor for high court review, the Supreme Court appears to be signalling a willingness to take on the larger equal protection issue which would likely have ramifications beyond DOMA. Indeed, it could be decisive in the Prop 8 case as well. (I imagine the 2 cases could be disposed of in one opinion. Look for the argument schedules for clues on that.)
Two other points of note on the granting of cert (PDF) in Windsor:
In addition to the question presented by the petition, theThese are signifcant questions beyond the case at hand. Fascinating to see the Court ask for briefing on these points. Definitely issues to watch.
parties are directed to brief and argue the following questions: 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.