Hollingsworth v. Perry, the Prop 8 case, will be reviewed by the Supreme Court. The Justices have added a question regarding whether the proponents of Prop 8 have legal standing to be in federal court under Article III of the Constitution. In the end the addition of this question could mean that the Court has no authority to decide whether or not Prop 8 violates the Constitution. In the event that they can't hear the case, Prop 8 would remain struck down but it may only be inapplicable as to the people named in the injunction: the plaintiffs and two county clerks. (At oral argument at the Ninth Circuit, David Boies suggested that if that were to happen, he would sue in the state of California for uniformity in the non-enforcement of Prop 8. But there would be no decision beyond the state of California.)
That would not be the final word, though. There are now two cases - one from Nevada and another from Hawaii - that are similar in a lot of ways to the Prop 8 case and involve many of the same issues: a state allows its gay and lesbian citizens to have most of the same rights associated with marriage but denies them the word. Both are federal challenges. And both reach the Ninth Circuit on appeal after the plaintiffs (same-sex couples) lost in the district court.
Another important aspect of these two challenges (Sevcik v. Sandoval in Nevada, and Jackson v. Abercrombie in Hawaii) is that there are no legal standing issues in either case. In the Nevada case, Governor Sandoval is the named defendant and he is involved in the case (along with the Coalition for the Protection of Marriage, who sponsored the ballot initiative for Nevada's anti-gay marriage amendment.) In Hawaii, the governor (Neil Abercrombie) admitted in response to the complaint that Hawaii's marriage scheme is unconstitutional. He is a party to the case, filing briefs that agree with the plaintiffs, and filing appeals. Another group was allowed to intervene to defend the law.
Since there are no issues involving anyone's right to appeal or appear in federal court either or both of these cases could provide vehicles for the Supreme Court to eventually reach the merits of the case. And since many of the issues are the same, and equivalent to the situation in California, these cases would be the next steps if there were no actual decision in the Prop 8 case.
Lambda Legal, a LGBT legal organization, filed the Nevada case (I've spoken with them a few times about the challenge) and today they asked the Ninth Circuit to put their case on a parallel track with the Hawaii case for briefing and argument on the same panel on the same day. (The Hawaii case was appealed in September and the Nevada case this month.) They pointed out the similarities between the two cases:
In both, this Court will be called upon to decide the threshold question of whether the 1972 summary dismissal in Baker forecloses the constitutional challenges to the marriage laws challenged in the two cases. Both appeals also raise the common question of whether it violates equal protection for the government to bar same-sex couples from marriage while simultaneously providing them with access to the rights and responsibilities of spouses through a second-class status, such as registered domestic partnerships (in Nevada) or civil unions (in Hawai‘i). The Plaintiffs-Appellants in both cases contend that sexual orientation-based classifications, such as the marriage restrictions in their respective states, warrant heightened scrutiny under the Equal Protection Clause, because, among other things, lesbians and gay men have faced a history of discrimination and sexual orientation is unrelated to one’s ability to contribute to society. In both cases, Plaintiffs-Appellants argue that the restriction of same-sex couples from marriage also warrants heightened review as impermissible discrimination based on sex.
Defendant-Appellees in both cases argue that only rational basis review applies to the respective states’ marriage exclusions. And in both appeals, the Court will be called upon to interpret the degree to which Perry v. Brown governs the equal protection claims of Plaintiffs-Appellants, including after disposition of that case by the Supreme Court.
(
Baker is
Baker v. Nelson, a 1972 one-sentence dismissal by the Supreme Court "for want of a substantial federal question" in a Minnesota case challenging the state definition of marriage. There are questions about its relevance in these cases: these are Equal Protection challenges based on sexual orientation and sex but that case was an Equal Protection challenge based only on sex. In order to apply
Baker as precedent it has to fit the precise issues in the current case.
And if the law has changed substantially it weakens the force of a summary dismissal. With Lawrence v. Texas and Romer v. Evans, the law has shifted pretty substantially. (Not to mention, as was pointed out in the Windsor DOMA case, intermediate scrutiny was not something the Court was applying in any case in 1972. Even if this were simply an Equal Protection challenged based on sex discrimination, the law has changed and the law would face a heightened form of judicial scrutiny.)
If the Ninth Circuit grants the motion, which is "nearly unopposed", the first briefs in the case would be due February 15, 2013, according to the order (as that's the same time they are already scheduled to be submitted in the Hawaii case).
These cases could very well be important depending on what the Supreme Court does or doesn't do on Prop 8. The Coalition for the Protection of Marriage has also filed a petition with the Supreme Court asking them to review the Nevada case before judgment at the Ninth Circuit. This was a recent filing so the case has not yet been distributed for a conference.
So this will seemingly be the next step in the fight for marriage equality. Conceivably a case like this could result in a decision in which states that allow civil unions or domestic partnerships would be required under the Equal Protection clause to allow gays and lesbians to marry. According to reports that would mean eight more states would have marriage equality. Or a decision could strike down all the marriage bans but that would be as unlikely as it would seem to be in the Prop 8 case. Or the Court could simply hear the Prop 8 case on the merits and the resulting decision would be precedent for these pending cases to rely on.
I write at Prop 8 Trial Tracker, where you can find coverage of these cases and more