Supreme Timing: Why It's Better for the Supreme Court to Hear the DOMA Case Before the Prop 8 Case (Part 1)

I firmly agree that the best possible outcome for marriage equality in the next year or so is for the Supreme Court to consider the DOMA cases, uphold the lower courts' rulings striking down the law, and decline to hear the challenge to the Ninth Circuit's Prop 8 decision.
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This is the first piece in a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court.

In a bout of incredibly serendipitous timing that nobody could have predicted, within the span of a week, both the First and Ninth Circuit Courts of Appeal have paved the way for the Massachusetts DOMA cases and the Prop 8 case to be heard at the U.S. Supreme Court. As always, there are a few caveats to keep in mind. First, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which is defending DOMA on the wishes of House Republicans due to the Justice Department's decision not to defend the law, could potentially ask that the three-judge panel decision made by the First Circuit be granted a rehearing by what's called an en banc panel made up of all the appellate court's active judges. This en banc rehearing would essentially be another intermediate step at the First Circuit before the case could move to the Supreme Court. Such a move, however, would have a small chance of succeeding, given that the court is currently composed of five judges, making the three-judge panel that struck down DOMA a clear majority to deny rehearing. And, of course, the Supreme Court has discretion in which cases it wishes to hear, which means that the justices do not necessarily have to take up any given appeal. (In fact, less than 1 percent of cases are taken up by the high court each year.)

When it comes to the DOMA cases, it is very unlikely the Supreme Court would not take up the appeals, given that a failure to do so would result in an act of Congress being declared unconstitutional and unenforceable in four states (and Puerto Rico!) while leaving it the law of the land in the other 46. On the other hand, it seems quite feasible that the Supreme Court would decline to hear the Prop 8 case, given the Ninth Circuit's clear efforts to limit its decisions to California only and not address any larger federal questions.

With all these complexities in mind, it's worth revisiting a question about which much ink (both digital and otherwise) has been spilled: Is it better for marriage equality if the DOMA cases reach the Supreme Court first, or if the Prop 8 case does? Any answer to this question is necessarily rooted in the imprecise tea-leaves science of court watching, but it is nevertheless a conversation worth having, especially considering the fact that the ground is now set for one or two high-profile marriage-equality cases to make their way to the high court within the next year or so. Writing June 8 in The Los Angeles Times, Douglas NeJaime of Loyola Law School argued, "Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward." And at Towleroad, the ever-insightful Ari Ezra Waldman lays out the arguments for why DOMA should come before Prop 8. (I have to credit the many commenters on Waldman's post for giving me some of the ideas that led to this series.)

I firmly agree with the argument that the best possible outcome for marriage equality at the Supreme Court in the next year or so is for the Court to consider the DOMA cases, uphold the lower courts' rulings striking down the law, and decline to hear the challenge to the Ninth Circuit's Prop 8 decision. This is not to say that this outcome is the one that I truly wish for; on the contrary, in my heart I want the Supreme Court to take up the Prop 8 case and choose to side with Judge Vaughn Walker's powerful and persuasive arguments that marriage discrimination is simply unacceptable under the U.S. Constitution.

But while I am an optimist at heart, I am a realist, as well, and although it is important for all activists to be impatient, push the envelope, and refuse to settle for less than everything they know is right and true, I think the most realistic scenario is almost as good for us as my imagined one. There are three reasons for this:

  1. The different resonances that the DOMA case might have with the Supreme Court as opposed to the Prop 8 case, given the justices' ideological makeup

  • The distinct constitutional implications that striking down DOMA would have compared with striking down Prop 8
  • The wide-reaching and perhaps hitherto under-appreciated effect that a DOMA win would have for marriage equality, including in a post-Prop-8 California
  • Over the course of this five-part series, I will explore each one of these arguments in detail, and I will wrap up the series with a conclusion about the importance of the timing of the two cases. This entire series is meant to delve more deeply into the issues than a one-time post would allow, and I hope it will inspire a vigorous debate around the issue of timing. While these pieces represent my own opinion and my reasoning for holding that opinion, I hope that those who feel differently (or perhaps see flaws in the arguments I make) contribute to the discussion in the comments. As I said earlier in this introduction, predicting the actions of the Supreme Court is at best an art and not a science, but it is still an important exercise for our community, because it helps us look at the reality of the legal landscape in which we live rather than the one in which we might wish to live. The recent decisions of the First and Ninth Circuits mean we are living in an exciting time when matters of great importance are to be decided. It helps if we go into them knowing where we stand.

    In part 2 of this series, I'll explore the different reception that the DOMA cases might have at the Supreme Court as opposed to the Prop 8 case, given the political and ideological makeup of the current nine justices.

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    Jacob Combs is a contributor and writer at

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