CNN commentator on Supreme Court news Jeff Toobin said Sunday he believes the high court will take the Massachusetts case challenging the Defense of Marriage Act but that it will decline to consider Proposition 8.
Speaking at a forum at the JFK Presidential Library in Boston November 18, Toobin said, “I don’t believe they are ready to take the backlash” of striking down laws banning same-sex marriage.
“They can see the writing on the wall,” said Toobin. “They see that same-sex marriage is happening.” But if the high court refuses to hear the appeal from Yes on 8 supporters of Proposition 8, he said, then same-sex marriage will become legal in California only.
“If they were to take that case and decide there is a right to same-sex marriage,” said Toobin, “that means there’s a right not just in California, but in Mississippi, too. And I don’t believe they are ready to take the backlash.”
Toobin said he does think the court will take a DOMA case, and said specifically, he thinks it will be the consolidated cases out of Massachusetts. Known generally as Gill v. Office of Personnel Management, the cases were brought by Gay & Lesbian Advocates & Defenders and the Commonwealth of Massachusetts.
The consolidated lawsuits won a ruling from the First Circuit that Section 3 of DOMA is unconstitutional.
The U.S. House’s Bipartisan Legal Advisory Group (BLAG) appealed that ruling, and two cases from the Second Circuit and one from the Ninth Circuit were subsequently appealed to the Supreme Court.
Some legal experts believe the Supreme Court will take one of the Second Circuit cases, especially if Justice Elena Kagan recuses herself from hearing the First Circuit case. Kagan indicated during her confirmation hearing that, as Solicitor General, she had some conversations with Department of Justice officials about the DOMA cases, which, at the time, included only the Massachusetts cases.
The Supreme Court is expected to announce December 3 which case or cases it will hear.
In addition to covering the Supreme Court for CNN, Toobin always writes about the court for The New Yorker magazine.