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Same-sex marriage briefing set (UPDATED)

UPDATED Monday 12:20 pm:  The Court’s scheduling order was in response to this letter from the parties with their joint proposal.


The Supreme Court on Friday afternoon set up a schedule for the filing of written arguments in the case testing the constitutionality of the federal Defense of Marriage Act, with briefing to begin January 22 and be completed before the Court holds arguments, probably in late March.   The order (found here) does not set a date for oral argument.  The schedule showed that the Court is treating the issue over the validity of that law separately for briefing from the question of whether it has the authority to decide that case (United States v. Windsor, docket 12-307).

Under the order, the House GOP leaders (acting for a majority of the Bipartisan Legal Advisory Group) will start the briefing on the constitutionality question over DOMA, on January 22.  On that same date, a Court-appointed lawyer, Harvard law professor Vicki C. Jackson, is to begin the briefing on the question of the Court’s authority to decide this case.

Here are the other dates:

* On the merits, briefs in opposition: federal government, by Friday, February 22, and by the woman involved in the case, Edith Windsor of New York City, by Tuesday, February 26.  The House GOP leaders’ reply brief will be due no later than seven days before oral argument (not yet scheduled).

* On the jurisdictional issue, briefs in opposition: government, House GOP, and Mrs. Windsor, all due on February 20, and reply briefs by the parties and Professor Jackson, due no later than seven days before oral argument.

In all likelihood, there will be separate oral arguments on the two issues.  The order also spells out when amici are to file their briefs.

The Court order makes no mention of the other same-sex marriage case that the Court has agreed to review, on the constitutionality of California’s “Proposition 8,” a statewide ban on such marriages.   Presumably, the normal briefing schedule under the Court’s rules will be followed in that case; that case involves both the merits and the question of whether the ballot measure’s proponents have a right to be appealing the Ninth Circuit Court decision striking down that amendment to the state constitution.


Recommended Citation: Lyle Denniston, Same-sex marriage briefing set (UPDATED), SCOTUSblog (Dec. 14, 2012, 4:50 PM),