

photo: laura padgett/flickr

Today in the news is this article, titled Justice Ruth Bader Ginsburg Says Supreme Court To Address DOMA This Session. The subject of this post is an update of a pertinent case currently on the SCOTUS docket.

Hollingsworth (petitioner) v Perry (respondent) is a pending Petition for Writ of Certiorari currently on the docket before the Supreme Court of the United States. Perry prevailed by a ruling in the lower court and Hollingsworth now challenges that decision (Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012)). The issue is whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

Firedoglake covered the Prop 8 trial in depth, and there has been extensive media and blog attention to the case throughout its litigation history in the courts. To reiterate, Prop 8 (ballot title: Eliminates Rights of Same-Sex Couples to Marry. Initiative Constitutional Amendment) passed in November, 2008. Prop 8 was then challenged on constitutional grounds and overturned in United States District Court with an opinion by Judge Vaughn Walker. Finally, on February 7, 2012, in a 2–1 decision, the US Court of Appeals for the Ninth Circuit affirmed Walker’s decision declaring the Proposition 8 ban on same-sex marriage to be unconstitutional. That opinion, written by Judge Stephen Reinhardt, is what the petitioner is challenging in the Petition for Certiorari (“cert” or “Petition for “cert”).

As you can see on SCOTUSblog.com, in addition to the initial petition, the briefs in opposition (here and here) and the link to the Ninth Circuit opinion, there are 13 Amicus briefs. There are also reply briefs to briefs in opposition.

The petition, the responses in opposition, the replies and the Amicus briefs have been filed in the Supreme Court. Clerks have reviewed them and distributed the incoming documents to chambers for the September 24, 2012 conference. Prior to the conference, Justices read and review incoming (distributed) material, at the rate of about 140 petitions each week, according to this certiorari practice article. During the conference, where only Justices are allowed to be in the room, they will make decisions about what to do with the petitions that they have reviewed. They can grant cert (agree to review the case), deny cert (the opinion ‘below’ stands unaffected), ‘relist and hold,’ where a case is held over for decision at a later date, or invite the view of the US Solicitor General (a CVSG or a Call for the View of the Solicitor General). On October 1, 2012, the decisions will be released in an “Orders List” on the Supreme Court site.

Bottom line in Hollingsworth v Perry: The Petitioner (Hollingsworth) is arguing for a grant of cert and an opinion from the Supreme Court that will set aside the opinion issued by the Ninth Circuit, and the respondent (Perry) is arguing for a denial of cert so that the opinion of the Ninth Circuit remains as the binding authority.

All of the petitions and Amicus (Latin: “friend of the Court”) briefs follow a standard format that contains the following: 1.title page with listed parties; 2. Question Presented; 3. Table of Contents; 4. Table of Authorities; 5. Argument; 6. Conclusion. There is a page limit of 30 pages.

Amicus briefs can only be submitted with specific permission from the court. You can look here to see how it is worded when permission is requested and granted. These briefs are not submitted by parties in the case. They are submitted by parties with interest in the case and outcome. Amicus briefs have been historically associated with various advocacy groups. It is worth noting that the ‘question presented’ in each brief is the lawyer’s opportunity to tell the Court what the issue is; the Court wants to know whether to grant or deny cert, and this is the lawyer’s shot at that. The question presented is persuasively phrased, and in some cases, the persuasion is evident in the Table of Contents and the Table of Authorities as well.

Here are examples, word-for-word, from petitions in this case. These are only snippets:

from Petitioner Hollingsworth, the question for the Court:

QUESTION PRESENTED Whether the Equal Protection Clause of the

Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

from Respondent Perry, Brief in Opposition, the question for the Court:

QUESTION PRESENTED Whether it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment for a State to use the ballot-initiative process to extinguish the state constitutional right of gay men and

lesbians to marry a person of the same sex

note on this next one. I found it curious that this next person did not use a spell checker for the question, especially given that this is the Supreme Court.

from Amicus brief of Center for Constitutional Jurisprudence, the question presented:

QUESTIONS PRESENTED 1. Whether the federal Constitution prohibits the people of a State from defining marriage as it has been traditionally understood, a union of one many and one women, when the procreative function that inheres in such relationships makes

them differently situated from same-sex relationships?

also, from the same brief, Table of Contents, reasons for granting (I of III):

REASONS FOR GRANTING THE WRIT ……………… 5 I. The Holding Below Altering the Definition of

Marriage Is Monumentally Important. …………….. 5 A. Equal Protection Analysis Is Only

Triggered If People Who Are “Similarly

Situated” Are Treated Differently. ……………… 5 B. Fundamentally, The Issue Here is Who

Makes The Policy Judgment About the

Purpose of Marriage, The People, or the

Courts? …………………………………………………… 11

same brief, continuing to the Table of Authorities. There is a long list, but here’s the first:

TABLE OF AUTHORITIES CASES Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ………………………………………….. 19

from Table of Authorities, listing the first few, from Brief of respondents Kristin M. Perry et al. in opposition:

Brown v. Bd. of Educ.,

347 U.S. 483 (1954) ………………………………………… 6

Carey v. Population Servs. Int’l,

431 U.S. 678 (1977) …………………………………. 31, 33

Citizens for Equal Prot. v. Bruning,

455 F.3d 859 (8th Cir. 2006) ……………….. 17, 24, 25



from Amicus brief of Public Advocate of the United States, et al., Table of Authorities (listing the first three, and this is amazing):

TABLE OF AUTHORITIES HOLY BIBLE Genesis 1:26-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Genesis 5:1-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ecclesiastes 11:5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCOTUSblog has a really nice compilation of the briefs that have been filed and distributed to the Court. Please go here to click on the links. Whether you are a layperson or a legal scholar, there is plenty to read in these documents to update yourself and form your owns thoughts about what could possibly be a United States landmark decision. If nothing else, the documents reveal a bit more about document formats and Supreme Court process.