Therese Stewart

On its first official day of the 2012-13 session, the U.S. Supreme Court on Monday did not include the Proposition 8 case on the list of cases it would or would not review.

Monday’s was the third list of cases released thus far by the Supreme Court for this session. The justices originally scheduled the case, Hollingsworth v. Perry, for discussion in their September 24 meeting, prompting many to speculate that the court would announce on either September 25 or October 1 whether it would take up the appeal from those seeking to preserve the ban on same-sex marriages in California.

But on Wednesday afternoon, September 26, a notice was posted in the press room at the Supreme Court, indicating the case was being “rescheduled” for a later conference meeting. As of deadline this week, the docket did not indicate a new conference date for the highly watched case.

Ted Olson, a lead attorney on the American Foundation for Equal Rights legal team that has won court victories striking down Proposition 8, said he assumes the court wants to discuss the Prop 8 case in the same conference with the Defense of Marriage Act cases.

Therese Stewart, Chief Deputy City Attorney for San Francisco, said the rescheduling of Hollingsworth may signal the high court is considering “whether it will take Perry and the DOMA cases together.” Or they may want to ensure their handling of the marriage cases don’t have “any impact on the election.”

“But I think the former is the more likely reason it was put over,” said Stewart.

The Supreme Court calendar indicates only three conference meeting dates for the justices in October –all Fridays—October 5, 12, 26. Typically, if a case is discussed in conference, its disposition is announced the following Monday (or if Monday is a holiday, then Tuesday).

Regardless of what the court decides to do, the news will be significant.

If the court takes review, then both sides will brace themselves for a decision that could make statewide same-sex marriage bans more difficult or easier to defend.

If the court decides not to take the appeal, then same-sex couples in California will soon be able to obtain marriage licenses again. Such a development on its own would boost momentum for a growing acceptance of marriage equality around the country, and make California the eighth state, plus the District of Columbia to provide for equal protection in marriage.

By not hearing the appeal of Prop 8 supporters, the court would be leaving as precedent, the Ninth Circuit’s decision that taking away the right to marry from an unpopular group, without a rational reason for doing so, violates the equal protection guarantee of the Constitution.

“The immediate effect of [not taking review] would be to allow marriage in California,” said Stewart, adding that, “once the Ninth Circuit issues its mandate, [that] should happen quickly.”

Leaving the Ninth Circuit decision as precedent would apply only to the Ninth Circuit states — California, Arizona, Nevada, Oregon, Idaho, Washington, Montana, Alaska, and Hawaii.

“The effect on other states would not be immediate,” said Stewart, “but the reasoning of the Ninth Circuit might be used in other cases.  The circumstances in California are somewhat unique, so whether another court or even another panel of the Ninth Circuit would apply all or some of the reasoning of the Perry panel to a different case probably depends on how similar or different the case is and who is on the panel deciding the case.”

Having Perry preserved in the Ninth Circuit may have some “persuasive effect” should Washington State voters reject a new marriage equality law there in November, prompting litigation, said Stewart, “especially because the situation would be closer to California’s than most.”

The Supreme Court announcements usually fall into one of two categories –“Cert granted” and “Cert denied.”

“Cert” is shorthand for “Petition for Writ of Certiorari,” a request that usually comes from a party who has lost litigation in a federal appeals court, asking the high court to review the lower court decision and change it. If the court “grants cert,” then at least four justices have voted to review the lower court decision and the case will be heard by the full bench. If the court “denies cert,” then the Supreme Court will not hear the case and the lower appeals court decision stands as precedent for the states in that Circuit. While these are the most frequent options, the high court can take other actions as well.

Stewart said that, if the Supreme Court decides not to review the Prop 8 decision, the Ninth Circuit would then issue its mandate requiring equal treatment of same-sex couples. Stewart said that typically takes about a week.

But here I think the court would get the mandate out very quickly, within a day,” said Stewart. “I am told that the state department of public health is all over this, i.e., ready to act promptly once the mandate issues.”