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Divided argument on Proposition 8

The Supreme Court agreed on Friday to let an Obama administration lawyer take part in the argument on March 26 on the constitutionality of California’s Proposition 8 ban on same-sex marriage in that state.  (The order is included among several procedural orders issued Friday afternoon.  Other orders from today’s Conference, including any cases granted, will be released at 9:30 a.m. Monday — the usual schedule.)

As of now, the March 26 morning argument in Hollingsworth v. Perry (docket 12-144) is scheduled for one hour.  It might well be allowed to run beyond that if, as expected, the Justices get actively involved in questioning the lawyers.

U.S. Solicitor General Donald B. Verrilli, Jr., last month asked the Court to allot the federal government ten minutes of time to present its views as an amicus in that case; the government has not previously taken any part in that case.  Verrilli told the Court that lawyers for the two same-sex couples who challenged Proposition 8 had agreed to give up to the government ten minutes of their usual allotment of thirty minutes.

The argument in Hollingsworth will actually cover not only the question of the constitutionality of Proposition 8, but also the question — added by the Court when it agreed to hear the case — on whether the sponsors of that ballot measure had a legal right under the Constitution’s Article III (that is, “standing”) to pursue their appeal.  The Ninth Circuit Court had struck down the measure, and the sponsors then asked the Supreme Court to review the case.

It is unclear whether the government lawyer who appears will argue about the “standing” issue, since the legal brief Verrilli filed in that case does not even mention it.  However, the Justices will obviously have the option of asking for the federal government’s views on that issue, too.  (The Court is expected to release, later today, the hearing list for the next round of arguments, and that will show who will be at the lectern for the two marriage cases.  UPDATE: The hearing list was released just before 4:30 pm Friday, and is discussed in a post, above.)

Among other new orders, the Court issued one in the other pending same-sex marriage case — United States v. Windsor (docket 12-307).  That order granted former U.S. Attorneys General Edwin Meese III and John Ashcroft an opportunity to file an amicus brief on the issue of the Court’s jurisdiction to hear that case.  The case involves the constitutionality of the 1996 federal Defense of Marriage Act, banning federal marital benefits to same-sex couples who are legally married under their own state laws.

The former chiefs of the Justice Department needed permission to have their brief accepted by the Court because, they said, their lawyer had misunderstood the filing deadline, and their document thus was filed late.

Meese and Ashcroft contended in their brief that, if the Court finds that the Republican leaders of the House of Representatives do not have Article III “standing” to defend DOMA, the Court should then find it cannot decide the case because the Obama administration has abandoned its legal defense of the law’s constitutionality.  Without the House GOP leaders, there would be no genuine controversy before the Justices because only those lawmakers are providing a defense of DOMA, Meese and Ashcroft noted.

The DOMA case is set for argument on Wednesday, March 27.  That case, too, involves both the constitutionality of the federal law and issues about the Court’s authority to rule on it.  The Court on March 4 set aside one hour and fifty minutes for that argument,with fifty  minutes on the jurisdictional questions and one hour on the constitutional merits.


Recommended Citation: Lyle Denniston, Divided argument on Proposition 8, SCOTUSblog (Mar. 15, 2013, 12:54 PM),