Supreme Court to Hear Challenges to Prop 8 and DOMA Section 3

“It’s just a case of learning how to start”

After having deliberated on many cases involving same-sex couples’ marriage-related rights the week before and deciding nothing, on December 7, 2012, the Supreme Court of the U.S. announced that it was granting review in two cases, one that had held unconstitutional Proposition 8, the initiative that amended California’s state constitution to strip same-sex couples of the right to marry, and one that had invalidated Section 3 of the federal so-called Defense of Marriage Act (DOMA), which requires the federal government to treat legally married same-sex couples as if they were unmarried.  [Quick disclosure:  I am a member of the Board of Directors and an elected General Counsel for the ACLU, which has represented Edie Windsor in her challenge to DOMA Section 3, although I have not helped with that litigation.]  Briefing will occur over the next few months, and the cases will be argued orally probably in late March, with decisions likely when the Court wraps up its term at the end of June 2013.  In light of the questions the Court posed, it looks like the term could end with either a bang or a whimper, as I’ll try to explain.

The clearly bad news, compared to the situation if the Court had not granted review in Hollingsworth v. Perry, as the Prop 8 case is now known, is that same-sex couples will continue to be unable to marry in California until the case is finally resolved.  Had the Court ‘denied cert’ (denied the petition for a writ of certiorari), leaving the decision of the U.S. Court of Appeals for the Ninth Circuit unreviewed, then the trial court’s order enjoining the government defendants not to enforce Prop 8 would have finally been allowed to go into effect.  That relief instead remains on hold (“stayed”) until after the Supreme Court rules in the case.

The Court could in June affirm the judgment below, where Judge Stephen Reinhardt wrote a ruling for the Ninth Circuit that Prop 8 violated same-sex couples’ right to equal protection of the laws under the U.S. Constitution.  The Supreme Court could affirm very narrowly, precisely tracking the Ninth Circuit opinion, its ruling then applying only to those states where same-sex couples were enjoying the right to marry but then had that right eliminated though they retained the possibility of every state-law legal consequence of marriage through a parallel legal institution (in California, “domestic partnerships”).  California is the only such state.   If the Court reasoned slightly more broadly, it could ignore the taking away of the right to marry that was being enjoyed and instead emphasize that California has no functional justification for excluding same-sex couples from civil marriage since it still offers them the same rights through domestic partnership.  This reasoning would apply to any state that denies same-sex couples marriage but offers comprehensive domestic partnerships or civil unions, like Nevada or New Jersey. 

Or the Court could hand the plaintiffs’ attorneys the broad victory they’ve wanted all along and sweepingly rule that the federal Constitution’s unenumerated right to marry is enjoyed by same-sex couples, so that the laws of the 41 states that limit marriage to different-sex couples are unconstitutional.  That kind of broad ruling against Prop 8 and in favor of same-sex couples seems, based on history, less likely than a narrower opinion striking down Prop 8.  But as long as five Justices agree with one or another of the constitutional arguments against the measure, then the plaintiffs will win and the right to marry will be restored in California.

The situation for the California marriage plaintiffs is actually slightly better than that.  Because California’s elected Governor and Attorney General have refused to defend Prop 8 since the outset, the federal trial court let the official Proponents of Prop 8 (the private individuals who qualified it for the ballot) argue in its defense.  But, as I’ve addressed before on CruzLines (here and in its links), federal constitutional law limits the kind of parties and lawsuits that may be brought in federal court:  Anyone seeking to invoke the federal courts’ authority must have “standing” to do so, a kind of legal right to have federal courts rule in a case.

The plaintiffs have argued all along that ballot initiative Proponents such as Prop 8’s official sponsors do not have standing to defend enacted initiatives in federal court.  In granting review in Perry, the Supreme Court directed the parties to address not only the “merits question” of whether Prop 8 violates the Constitution, but also whether the Proponents have constitutional standing in this case.  That is no assurance that the Court thinks they lack standing, but it probably shows that enough Justices had questions that four of them decided to order the parties to brief the issue.  If the Court holds that the Proponents lack standing, then they never should have appealed to the Ninth Circuit, and the Court would vacate Judge Reinhardt’s opinion and send the case back for the Ninth Circuit to dismiss the appeal.  This would leave in place Chief Judge Walker’s trial decision and grant of an injunction, and same-sex couples would be able to marry again in California, but there would be no binding opinion of the Court of Appeals to govern the other western U.S. states in the Ninth Circuit.  (The Ninth Circuit would likely rule on the marriage issue again in an appeal from federal trial courts in Hawaii and Nevada that rejected marriage equality claims.)

So, for the Proponents to win in the Supreme Court, they need five Justices to agree that they both have standing and are correct that Prop 8 does not violate either same-sex couples equal protection rights or their right to marry.  Conversely, for the plaintiffs to win back the right to marry, they just need any five Justices to agree with any version of the argument that Prop 8 is unconstitutional (broad or narrow) or with the argument that the Proponents do not have standing to appeal in this litigation. 

On the other hand, a ruling by the Supreme Court that Proposition 8 is constitutional would necessarily be broad.  To uphold Prop 8’s constitutionality, the Court would have to reject each and every argument that it is unconstitutional.  So, it would have to rule that as a general matter the federal Constitution’s unenumerated right to marry is only a right to marry a person of a different sex.  It would also have to rule that Prop 8 does not violate the Equal Protection Clause in treating same-sex couples differently from different-sex couples.  Because this is an especially implausible argument under any form of heightened judicial scrutiny, this might mean that the Court also might have to rule that only minimal “rational basis” review applies where sexual orientation is at issue (making it harder to challenge anti-lesbigay discrimination of any kind).  And the Court would have to hold that this is true even if a state has no functional justification for the marriage exclusion because it gives same-sex couples the same legal rights and responsibilities via domestic partnerships or civil unions that it gives to heterosexually married couples.  Further, the Court would have to say this is true even where a state used to let same-sex couples marry, and where there was significant evidence of appeals to anti-lesbigay prejudice even in the official ballot materials used to persuade the voters to enshrine such discrimination in the state’s fundamental law.  If the Prop 8 plaintiffs lose, they will lose big (which is one reason the LGBT advocacy groups were not in favor of this litigation when it was first brought).  If that happens, there’d be little prospect for new constitutional marriage equality litigation to succeed (at least until the Supreme Court changes its collective mind, presumably after a change in personnel), and marriage equality advocates would be forced to continue state-by-state fights to persuade the voters to repeal restrictive marriage laws or (in a majority of states) to re-amend their state constitutions to allow same-sex couples to marry.

How all this will ultimately play out will not be clear until the Supreme Court hands down its opinions (though perhaps the oral arguments might offer some clues, however equivocal).

Turning to United States v. Windsor, the DOMA case in which the Supreme Court granted review, it’s interesting to note that the Court there also added a question to the one presented by President Obama’s Solicitor General (“SG,” the nation’s top Supreme Court attorney, number three in the Justice Department).  The SG had asked the Court to decide whether DOMA Section 3 unconstitutionally denies equal protection to same-sex couples legally married under state law.  The Court’s order granting the government’s cert petition added the questions “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives [the Supreme] Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives [“BLAG”] has Article III standing in this case.”  Because the federal government is continuing to enforce DOMA, even though the President and the Attorney General have concluded that it is unconstitutional, it is still seeking to charge Edie Windsor inheritance tax that she would not have to pay if the federal government recognized her marriage to her late wife.  Their case thus should present a sufficiently adverse case that the Supreme Court would have jurisdiction.

If that’s right, it would not matter in Windsor’s case whether or not the Supreme Court rules that BLAG has standing.  The executive branch, here a proper party, or so I conclude, petitioned for review of the Second Circuit’s decision in Windsor’s favor, so that would distinguish the standing problems from those in the Prop 8 litigation. 

The BLAG is a different matter.  Although the Supreme Court has previously said that Congress is a proper party to defend federal laws at least when the executive branch does not, that has generally been in cases where congressional standing was not necessary to jurisdiction.  Here, you have not a decision by Congress to defend DOMA section 3, but a decision by a bare majority of a committee of just one House of congress.  So there's still a question about BLAG's standing.  If I’m right that this does not matter in the Windsor case, the Court can issue a judgment on DOMA’s merits, and that would affect other cases’ reasoning, but a Supreme Court ruling here that BLAG lacks standing could perhaps have ramifications for some of the many other DOMA cases where BLAG has been defending the law.  (It’s been a long day and I’d have to think that through further.)

If the Court reaches the merits, it could either affirm the Second Circuit’s judgment in Windsor that DOMA Section 3 is unconstitutional or reverse that court.  Most of the courts that have held DOMA unconstitutional have relied on “rational basis review,” the form of judicial scrutiny most deferential to the government.  The Second Circuit Court of Appeals, in contrast, agreed with the plaintiffs and with the Justice Department that courts should be more skeptical when the government discriminates on the basis of sexual orientation; it held that the same kind of heightened scrutiny used in sex discrimination cases also applies to anti-lesbigay discrimination. 

The Supreme Court could affirm on either ground.  It could agree that heightened scrutiny is the proper legal test, and that DOMA Section 3 lacks the “exceedingly persuasive justification” necessary to survive such review.  This would make clear that anti-gay discrimination by the government is dubious regardless of the context, and so it might seem like a broader ruling.  On the other hand, the Supreme Court could follow other courts and its own model (in the 1996 case Romer v. Evans, invalidating a Colorado anti-lesbigay state constitutional amendment), not reach the question of the appropriate level of scrutiny, and just hold that DOMA Section 3 does not even pass the easiest form of judicial review.  Because every government action that discriminates on any basis needs at least such a “rational basis,” a holding that DOMA fails to do so could be helpful in other cases, suggesting a degree of breadth to an otherwise narrow-seeming kind of analysis.

Of course, it’s also possible that the Supreme Court might reverse, upholding the constitutionality of DOMA Section 3.  To do that, a majority would have to decide the proper level of scrutiny for sexual orientation discrimination and then rule that DOMA survives that level.  (Given what he’s said about the Fourteenth Amendment and sex discrimination based on his view of history, Justice Scalia might vote that the proper level of scrutiny here is “none.”)  This again could be bad news for challenges of governmental anti-lesbigay discrimination of all kinds.

So, here’s hoping that the Supreme Court builds its doctrine in a useful direction, even if narrowly, “one brick at a time.”

[edited 20121208 to correct typo]

Supreme Court Defers Considering Prop 8/Article Argues Narrow Decision Permissible

“So when they ask me later, I won’t tell them how it’s going/But now my head is empty and the work load keeps on growing”

As readers probably know by now, the Supreme Court has rescheduled its consideration of the Proposition 8 litigation, now captioned Hollingsworth v. Perry.  The Court will now discuss whether to grant the Prop 8 proponents’ petition for certiorari (i.e., review of the decision by the U.S. Court of Appeals for the Ninth Circuit) at its (private) conference on November 30.  (The SCOTUS docket for the case is here.)  Although the Court is likely to announce shortly thereafter that it is granting or denying review, it is also possible that the Justices might keep the case in limbo until after it decides one or more challenges to the constitutionality of the so-called Defense of Marriage Act (DOMA) – which virtually all Court watchers including me are certain it will grant review in – even though there are some distinct issues in the DOMA challenges and the Prop 8 challenge. 

While we await word on the Court’s conference on Perry, here’s a link to a draft of Repealing Rights: Proposition 8, Perry, and Crawford Contextualized, a short piece I’m preparing for a symposium issue of the N.Y.U. Review of Law & Social Change, which hosted me at a live symposium (also featuring Rachel Maddow!) on “Making Constitutional Change: the Past, Present, and Future Role of Perry v. Brown” on October 5, 2012.  In it, I argue that Prop 8’s proponents and their supporting amici are wrong in claiming that one Supreme Court decision from 1982 affirmatively establishes the constitutionality of Prop 8’s targeted, partial repeal of marriage rights enjoyed by same-sex couples in California.  The proponents are therefore also wrong to maintain that the narrow, California-specific reasoning of the Ninth Circuit Court of Appeals is foreclosed by Supreme Court precedent.  It is not, and the Court would not act improperly if it were simply to deny review in Perry, leaving the Ninth Circuit judgment intact and finally clearing the way for same-sex couples to marry civilly in California.

Historic Vote by Four States for Marriage Equality

“Can’t you feel a brand new day?”

Based on the available results, I am thrilled to note that on November 6, 2012, the voters of four states reversed a dramatic and discouraging pattern of popular votes against same-sex couples’ freedom to marry.   The people of Maryland and (it appears as of this writing) Washington voted “yes” on referenda approving measures their state legislatures had passed to open civil marriage to same-sex couples.  The people of Maine approved an initiative to remove the mixed-sex requirement from their marriage law, just three years after a referendum there defeated a bill the Maine legislature had passed to do the same.  And in Minnesota, the voters defeated a proposed constitutional amendment that would have entrenched the state’s present statutory exclusion of same-sex couples from marriage.  This is an especially welcome development, as it interrupts an unbroken string of thirty-two marriage “definition” state constitutional ballot measures.  (Although Arizona voters rejected a discriminatory initiative in 2006, that measure would have gone further and amended the state constitution to block any legal status for same-sex couples “similar to marriage.”  A narrower ‘marriage only’ amendment was approved by a majority of Arizonans voting on it two years later.)

Coupled with the first-ever election of an openly LGBT person to the U.S. Senate (Tammy Baldwin, a lesbian and member of the U.S. House of Representatives from Wisconsin), these four states’ voting for marriage equality may well mark the beginning of a sea change in the country’s views of LGBT people and issues affecting us.  It certainly reinforces the view that nationwide marriage equality is, with the continued hard work of equality supporters of all sexual orientations, an eventuality and not a mere pipe dream.  I fervently hope that a majority of the Justices of the Supreme Court of the United States see that and welcome this shift toward fuller justice, and that they rule accordingly in whatever they do with the cases challenging the discriminatory federal law restriction on marriage in Section 3 of the so-called Defense of Marriage Act (DOMA), one or more of which the Court is certain to take up, and in the Perry litigation thus far holding unconstitutional California’s Proposition 8, which amended our state constitution to strip same-sex couples of the right to marry, which the Court could well decide not to review in light of the careful, narrow opinion written by Ninth Circuit Court of Appeals judge Stephen Reinhardt.  We may know shortly after November 20 whether the Supreme Court will hear any of those cases.  Today, though, feels like a brand new day.

Everybody look around

'Cause there's a reason to rejoice you see

Everybody come out

And let's commence to singing joyfully

Everybody look up

And feel the hope that we've been waiting for

Everybody's glad

Because our silent fear and dread is gone

Freedom, you see, has got our hearts singing so joyfully

Just look about

You owe it to yourself to check it out

Can't you feel a brand new day?

[“Everybody Rejoice (Brand New Day),” by Charlie Small, from the soundtrack of The Wiz]


[date typo corrected 20121107 8:23 p.m. PST]

Defense of Marriage Act Roundup

“In you I find a reason/And hope for all dreamers”

In the United States June is for many a month for weddings, and the month when many places have LGBT Pride celebrations, so it seems fitting to address a new round of decisions about the odious so-called “Defense of Marriage Act” (or “DOMA”).  In late May and early June, four federal courts in as many weeks ruled that DOMA’S prohibition on the federal government’s recognizing legal marriages of same-sex couples (entered into in states or jurisdictions that allow them) violates the equality commands of the U.S. Constitution.  All four decisions held (one way or another) that DOMA failed the deferential form of judicial scrutiny termed rational basis review, continuing a pattern that has been emerging starting in 2010.  With such a barrage of decisions coming from the federal courts, including judges nominated by Republican presidents, it seems somewhat more likely that the Supreme Court would agree and hold DOMA unconstitutional should it choose to take up one or more of these cases.

Karen Golinski & wife Amy Cunninghis, Photo:NYT/Jim Wilson

The first in this string of decisions was Golinski v. Office of Personnel Management (N.D. Cal. May 22, 2012), opinion hosted here by Hunter of Justice, the excellent blog by Georgetown law professor Nan D. Hunter.  The case began when Ninth Circuit Court of Appeals staff attorney Karen Golinski tried to enroll her legal wife in the family coverage health insurance plan provided to court employees.  After lengthy bureaucratic wrangling, including the federal Office of Personnel Management (OPM) denying administrative authority claimed by Ninth Circuit Chief Judge Alex Kozinski, Golinski sued in federal court, arguing that the federal definition section of DOMA’s refusal to recognize her as legally married for purposes of the laws governing federal employee benefits violated her constitutional equal protection rights.  The district court agreed, but its reasoning was noteworthy:  Primarily, the court held that DOMA discriminates against some married couples on the basis of sexual orientation, which in its view subjected the law to a form of heightened scrutiny and which DOMA failed; in the alternative, the court held, as had some prior cases, that DOMA fails even rational basis review.

How much of a justification the government must have to treat people unequally despite the constitutional guarantee of equal protection of the laws depends upon the type of discrimination at issue and the type of scrutiny the courts apply to that.  Most legal distinctions are subject to review only for a “rational basis,” a typically weak standard requiring that the challenged law at least hypothetically could serve any legitimate government purpose in some rational way; most laws also survive this weak standard of review.  Some forms of discrimination, however, are subject to less deferential, more skeptical judicial review.  Governmental sex discrimination, for example, must survive “intermediate scrutiny,” and so the discriminatory law’s actual purpose must be not merely legitimate but “important,” and the discrimination must be not merely rationally but “substantially” related to that purpose.  And when the government treats people differently on the basis of race, courts apply “strict scrutiny” and require the government to prove that its law is “narrowly tailored” or “necessary” to further some interest that is not just legitimate or even important but actually “compelling”; few laws survive such scrutiny.

Golinksi resoned that earlier Ninth Circuit precedent holding sexual orientation discrimination subject only to rational basis review had been undermined by Supreme court decisions such as Lawrence v. Texas (holding in 2003 that Texas’s “homosexual conduct” law was unconstitutional and overruling Bowers v. Hardwick, the Court’s 1986 decision upholding Georgia’s sodomy law).  The trial court considered many factors that courts use to determine the proper level of scrutiny, including the history of invidious discrimination against lesbigay persons, the irrelevance of sexual orientation to a person’s ability to contribute to society, the immutability or resistance to change or centrality to identity of sexual orientation for the vast majority of people, and the political vulnerability or lack of meaningful political power of lesbigay people as a minority in society.  Although the court’s reasoning did not cleanly differentiate between the two forms of heightened scrutiny, strict scrutiny and intermediate scrutiny, its opinion is probably best read as holding that DOMA must survive at least intermediate scrutiny (so must be substantially related to an important government interest, not just rationally related to a merely legitimate interest) and that it fails to do so.  With most federal courts using only rational basis review to address sexual orientation even if in recent years they have more often found anti-lesbigay laws unconstitutional under that deferential standard, Golinski’s embrace of heightened scrutiny, in accord with the weight of law journal analyses of the issue, heightens the opinion’s significance, no pun intended.

Photo: Legal Aid Society-Employment Law Center

Two days later, in Dragovich  v. U.S. Department of Treasury (N.D. Cal. May 24, 2012, opinion hosted here by the Legal Aid Society) another federal judge from Northern California also held the federal definition section of DOMA unconstitutional.  In Dragovich, the Legal Aid Society-Employment Law Center filed a class-action lawsuit with a number of same-sex couples, some lawfully married under California law like Patricia Fitsimmons and Elizabeth Litteral and some in state registered domestic partnerships, as named plaintiffs challenging DOMA’s definition of marriage excluding same-sex couples and provisions of federal tax law to the extent those laws limited their participation in long-term care insurance offered by CalPERS, the California Public Employees’ Retirement System. 

Rather than take Golinski’s approach and conclude that Supreme Court developments had undermined Ninth Circuit precedent requiring rational basis review, the Dragovich court stuck with that precedent and asked whether DOMA’s anti-lesbigay discrimination in this context was rationally related to a legitimate governmental purpose.  The court rejected arguments that DOMA was justifiable as a way to exercise caution, a measure to conserve government money, an attempt to preserve uniformity of eligibility for federal benefits, or a way to encourage responsible procreation and/or to preserve a social or symbolic link between marriage and procreation.  This left only the “moral condemnation and social disapprobation of same-sex couples” with evidence of which the congressional record was replete, but which cannot sustain a discriminatory law even under the deferential approach courts adopt with rational basis review.

Going beyond Golinksi and other prior DOMA cases, Dragovich also held that, aside from DOMA, the exclusion of same-sex state registered domestic partners from favorable federal tax treatment for CalPERS failed rational basis review.  Because the relevant tax law treats registered domestic partners differently from married couples, and California law excludes same-sex couples from civil marriage, relegating them to domestic partnerships, the court held that the tax law discriminated on the basis of sexual orientation.  Examining various congressional pronouncements from the period when the tax  law at issue was adopted, which was basically contemporaneous with the enactment of DOMA, the court concluded that “Congress acted on anti-gay animus in refusing to include registered domestic partners in the list of relatives eligible to enroll in state-maintained long term care plans.”  Because that is an impermissible justification for any governmental action, and because no legitimate governmental purpose (such as easing the administration of such plans) was rationally advanced by the statutory exclusion, Golinski held it to violate constitutional equal protection principles.

Nancy Gill & wife Marcelle Letourneau, Photo: Gay and Lesbian Advocates and Defenders

One week later, the U.S. Court of Appeals for the First Circuit also ruled that the DOMA’s restrictive federal definition of marriage is unconstitutional.  The First Circuit opinion in Massachusetts v. U.S. Department of Health and Human Services is hosted by Metro Weekly here.  Barred by circuit precedent from subjecting the statutory discrimination to the more stringent forms of scrutiny applied to sex or race discrimination, the Court of Appeals in a novel but not wholly unprecedented move concluded that a combination of discrimination and federalism concerns “require[d] a closer than usual review” of the statute, which DOMA failed.  The court therefore affirmed the trial court’s injunction against enforcement of DOMA in a relatively narrow opinion whose reasoning could well appeal to a majority of Justices on the U.S. Supreme Court.

The Massachusetts litigation began as two suits, one brought by Massachusetts and one brought by same-sex couples or surviving members thereof legally married in that state, challenging the denial of specified federal benefits that would have been paid were same-sex couples’ marriages recognized.  (I wrote about the trial court decisions in those cases here.)  Resolving the appeals from both suits with one decision, the Court of Appeals for the First Circuit wrote a candid, creative, and careful opinion, concluding that the federal government lacked a constitutionally sufficient justification for entering a domain traditionally regulated by the states and categorically discriminating against same-sex couples lawfully married in Massachusetts.

The unanimous Court of Appeals opinion was authored by highly respected Judge Michael Boudin, who was appointed to that court by the first President Bush. The opinion was strikingly candid, on both micro and macro levels.  Following an initial admission that “[t]his case is difficult,” the court acknowledged that the precedents bearing on the constitutional questions did not all speak with one voice.  And ultimately, the judges predicted, “only the Supreme Court can finally decide

this unique case.”

The couples or surviving members of couples challenging DOMA argued that sexual orientation discrimination should be subject to a more stringent level of scrutiny than rational basis review.  Unfortunately, First Circuit precedent (from a case, Cook v. Gates, challenging the military’s former “Don’t Ask, Don’t Tell” policy) held that sexual orientation discrimination was not suspect  or quasi-suspect and so not subject to strict or intermediate scrutiny.  The Cook precedent remains binding in the First Circuit until the Supreme Court overrules or undermines it or until the First Circuit Court of Appeals sits “en banc” (with all of its members participating instead of the usual panels of three judges that routinely hear appeals) and overrules it.

So the mere fact that DOMA discriminates against lesbigay persons was not enough to subject DOMA to more judicial scrutiny than rational basis review, which, as I have said, is characteristically quite deferential.  Instead, the court took a creative approach that relied on a combination of two factors to establish the propriety of meaningful judicial review (instead of the “roll over and play dead” approach often deployed under the rubric of rational basis review).  “Supreme Court equal protection decisions have both intensified scrutiny of purported justifications where minorities are subject to discrepant treatment and have limited the permissible justifications[,]” the court reasoned, and “in areas where state regulation has traditionally governed, the [Supreme] Court may require that the federal government interest in intervention be shown with special clarity.”

The Court of Appeals was correct that “the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification. In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.”  The court was also correct that “[s]everal Justices have remarked on this”; the Court of Appeals might have added Justice O’Connor in her concurring opinion in Lawrence v. Texas.  But the Supreme Court as a whole has to date refused to acknowledge that it has used rational basis review two ways, “in its minimalist form” as the Court of Appeals put it and in a more searching form sometimes described by commentators as “rational basis with bite.”  Indeed, one of the three Supreme Court cases relied upon by the Court of Appeals, City of Cleburne v. Cleburne Living Center (1983), was later characterized by a Supreme court majority as “[a]pplying the basic principles of rationality review” and holding that a law discriminating against people then described as mentally retarded “incurs only the minimum ‘rational-basis’ review applicable to general social and economic legislation.” (Board of Trustees of University of Alabama v. Garrett (2001))

The Court of Appeals was therefore prudent in Massachusetts to look beyond prejudice against lesbigay people in justifying its “closer than usual review” of DOMA’s constitutionality.  This is especially true in light of the court’s somewhat gratuitous rejection of the argument that DOMA’s “dominant purpose was hostility to homosexuality”; the courts in Golinsky and Dragovich concluded otherwise, and the First Circuit did not need either to embrace or to reject their view of DOMA’s purpose(s) to reach its conclusions.

Where the court turned was to federalism.  In line with arguments I have previously sketched (here, published version here), the court rejected the argument that the federal government categorically lacked authority to regulate in the area of marriage, which states have long regulated.  It instead treated the historical dominance of the states in marriage regulation as a factor that, in combination with DOMA’s burdens falling on a historically marginalized group, warranted the court in looking carefully at the law’s proffered justifications.  “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”  The Court relied on cases about the extent of Congress’s authority under the Commerce Clause for its conclusion that this kind of federalism concern can heighten equal protection scrutiny of a law such as DOMA. 

Since Massachusetts is a case about equal protection constraints on government action, not the boundaries of Congress’s commerce power, the Court of Appeals might have also and perhaps more directly relied on Plyler v. Doe (1982), a Supreme Court decision holding that Texas violated the equal protection rights of children who were undocumented aliens (not lawfully present in the U.S.) by denying them the free public education it provided citizen and lawfully present children.  Texas’s law did not discriminate on the basis of a suspect classification (since immigration status is neither wholly immutable nor generally irrelevant to proper legislative ends) nor deny these children a fundamental constitutional right (since the Court had previously held there was no such right to education).  Yet rather than apply minimal rational basis review, the Supreme Court concluded in Plyler that “the discrimination contained in [Texas’s law] can hardly be considered rational unless it furthers some substantial goal of the State”–and that it did not.  In striking down Texas’s discriminatory law, the Court emphasized that in our scheme of federalism, the national government is given plenary authority over immigration and naturalization, to the exclusion of state authority in most cases.  Texas’s assertion of authority regarding immigration status in contrast to prevailing traditional allocations of governmental power might be compared to the federal government’s similarly unusual assertion of authority with respect to marriage in DOMA.  Of course, Plyler was decided by a 5-4 vote on the Court, and its continued vitality as a precedent may be revealed when the Supreme Court decides on the constitutionality of Arizona’s SB 1070 in Arizona v. United States this month.  So the Court of Appeals may have exercised appropriate discretion in relying on more recent Commerce Clause decisions popular with the more conservative side of the Court over Plyler.

Edie Windsor & her legal team, Photo: ACLU

The most recent judicial defeat for DOMA came the following week from a federal trial court in New York in an ACLU case, Windsor v. United States (S.D.N.Y. June 6, 2012, hosted here).  [Disclosure: Although not involved in this litigation, I remain a member of the national board of directors and an elected General Counsel of the ACLU.  As always, the views expressed here are my own and not necessarily those of any individual or entity with whom or which I might be associated.]  Because of DOMA, the IRS refused to recognize Edie Windsor’s lawful marriage in Canada to her wife Thea Spyer; as a result, after Spyer’s death Windsor had to pay more than one third a million dollars in federal estate tax from which a married different-sex couple would have been exempt.  She sued, arguing that this application of OMA’s federal definition section violated her equal protection rights.  On June 6, the U.S. District Court agreed, holding DOMA unconstitutional under rational basis review.

The U.S. Court of Appeals for the Second Circuit, which includes the federal courts in New York, has not decided what level of equal protection scrutiny should apply when the government discriminates on the basis of sexual orientation.  With most of the other Courts of Appeals having decided on rational basis review, the trial court in Windsor was hesitant to hold heightened scrutiny appropriate.  Ultimately, however, the judge decided not to decide the question because DOMA failed even conventional rational basis review (and thus the court said it was relieved even from deciding whether to apply a more searching form of review as the Court of Appeals did in the Massachusetts decision the week before).

Since the Obama administration has refused to defend DOMA since concluding it was unconstitutional, the defenses of the law are being mounted by private legal counsel hired by the House of Representatives’ Bipartisan Legal Advisory Group (voting on a part-line basis, 3 Repulicans in favor vs. 2 Democrats against).  The arguments in Windsor are the same as the ones in prior decisions, and the district court’s reasoning rejecting them are familiar as well, with the opinion quoting or citing all three decisions addressed above.

With so many judges across the country demonstrating that reason need not leave the courthouse when rational basis review comes in, the writing may be on the wall for DOMA’s discriminatory federal “definition” of marriage.  Federal litigation in other Circuits or on appeal from some of the trial court decisions could go the other way and uphold DOMA.  And of course it is difficult to predict what the Supreme Court will do.  But after several years of judicial passivity in the face of DOMA, this dramatic pattern of invalidations from sea to sea bodes well for justice being done. 


“That’s what my heart yearns for now.”


[edited for typography 7:01 PDT 20120614]

Virginia Assembly Denied Vote to Gay Judicial Nominee

“It’s  a sorry state, I say to myself”

(photo: Richmond Law magazine, University of Richmond, 2009)

The Washington Post has reported that the Virginia House of Delegates has voted to close its session without voting on the proposed appointment to state District Court of Tracy Thorne-Begland, a prosecutor from Richmond, thus killing his nomination.  The effort was spearheaded by Delegate Bob Marshall, who claims not to have objected to Thorne-Begland’s sexual orientation, which the state’s governor insisted should not be a factor, but because he was a “gay activist.”  Thorne, as he was known at the time, publicly came out as gay while serving in the U.S. Navy and unsuccessfully challenged his discharge pursuant to the military’s “Don’t Ask, Don’t Tell” policy.  

According to the Richmond CBS affiliate, “Marshall said that such gay rights advocacy is okay while serving in an elected capacity, but not as a judge–which calls for one to be impartial.”  Of course, since Marshall had no basis for assuming Thorne-Begland would suffer from role confusion and as a judge act the way an elected policymaker would, he needed some other reason to oppose Thorne-Begland with a straight face (so to speak).

Marshall found that reason in the fact that Thorne-Begland had been married in another state to a man, with whom he was living and raising children.  Virginia has a state constitutional amendment restricting civil marriage to male-female couples, which was enough for Marshall to conclude that “Thorne-Begland’s ‘life is a contradiction to the requirement of submission to the [state] constitution,’” according to the Post.  This overlooks the fact that Virginia cannot control whether other states allow same-sex couples to enter legal marriages, nor may it consistent with the First Amendment prohibit such a couple from holding themselves out as married (regardless of whatever it may be able to do when they are completing state governmental forms, for example).  Thus, there appears to be no legitimate basis for opposing Thorne-Begland beyond bare disagreement with his support for marriage equality, or because he is making a family life as a gay man.  It’s a sorry state when civil rights advocacy – or being gay – can disqualify one for judicial office.

CA Supreme Court's Disappointing Standing Decision

Well, my heart went "boom"

The California Supreme Court issued the latest entry in the legal paper trail of the saga of Proposition 8 today.  Prop 8, recall, is California’s initiative constitutional amendment that stripped same-sex couples of their previously fundamental right to marry under the California Constitution.  Answering a question that had been certified by the U.S. Court of Appeals for the Ninth Circuit, the court ruled “that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under ... the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.”  With this ruling, the dispute over Prop 8's constitutionality returns to the U.S. Court of Appeals for the Ninth Circuit, where that federal court now seems more likely to rule that Prop 8's official sponsors ("the Proponents") have the legal authority or standing to appeal Judge Walker's August 2010 decision holding Prop 8 unconstitutional.

I discussed the procedural posture of the challenge to Prop 8 and issues of the Proponents standing to appeal Walker's decision more fully here and here (among others).  For now, let me repeat that to be able to take an appeal in federal court, the Proponents must have a sufficient stake in the dispute that they have "standing."  Either they must have what the Supreme Court of the United States (SCOTUS) has called a "concrete and particularized interest" in the dispute, or they must somehow be able to step into the shoes of the state of California since pretty much everyone agrees that a state would have standing in federal court to defend its laws.  Prior SCOTUS case law makes it exceeding unlikely that the Proponents would have a particularized interest in Prop 8's validity, and indeed CASC does not even address that part of the Ninth Circuit's question.  Rather, it essentially holds that California law authorizes initiative proponents to step into the state's shoes when the elected state officers who ordinarily defend such measures choose not to.

But from where does this authority stem? CASC repeatedly says that Proponents enjoy this authority "under state law."  And, as quoted in the opening paragraph here, the court says that it is the provisions of the state constitution providing for the initiative power and the provisions of the state's election statutes specifying the role that initiative sponsors such as the Proponents play in getting an initiative adopted that confer this authority on ballot sponsors.  The court does not actually say that it is interpreting any of these provisions as the source of the authority to defend and to appeal adverse judgments -- and with good reason.  As Ted Olson emphasized in oral argument to the court, the California constitution expressly says that "The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them."  It says nothing about anyone defending enacted initiatives (or any other post-enactment function).  Likewise, the state's Election Code details the role that initiative sponsors have prior to enactment of their measures, and says nothing whatsoever about any post-enactment role for initiative sponsors such as the Proponents of Prop 8.  Ordinary principles of statutory and constitutional interpretation thus would seem to weigh heavily against CASC's conclusion today as a matter of interpretation, and the court does not even pretend to try to parse the meaning of the provisions of law on which it claims it is basing its decision.  The court's ruling thus is better understood not as an interpretation of state law but as a common-law holding, an interpolation, or a judicial construction, a rule the court chose to adopt to give effect to the values reflected in the California constitution and the state Election Code -- "to guard the people's right to exercise the initiative power."

There is evidence in the CASC's opinion to support this characterization.  The court quoted prior opinions where it had said of the initiative power that it is "the duty of the courts to jealously guard this right of the people."  To that end, the court reaffirmed, "if doubts can reasonably be resolved in favor of the use of [the initiative] power, courts will preserve it."  The trouble, of course, is that, as described above, the reserved initiative power is the power of the people to propose California statutory or constitutional measures and to vote them up or down.  To propose and to vote, as Ted Olson rightly emphasized at oral argument last December.

How then does the court justify creating its own gap-filling rule allowing initiative sponsors the authority to assert the state's interest in an enacted initiative to defend a measure or to appeal a decision invalidating it? The court quotes the same decisions, specifically their language saying that courts should "apply a liberal construction to [the initiative] power wherever it is challenged in order that the right be not improperly annulled."

Set aside the problem that the court is not interpreting but clearly adding to the words of the state constitution and the Election Code.  Where is the risk that an enacted initiative would be "nullified," whether "directly or indirectly" (as the court says elsewhere in the opinion) by acts of elected state officers?  Even if "the [California] Constitution‘s purpose in reserving the initiative power to the People would appear to be ill-served by allowing elected officials to nullify either proponents' efforts to ‘propose statutes and amendments to the Constitution’ or the People‘s right ‘to adopt or reject’ such propositions" (in the Ninth Circuit's words, quoted by the court), how could elected officers do that nullifying?  No one was claiming that governors and attorney generals could simply disregard an enacted initiative and treat it as a nullity.  As the same-sex couple plaintiffs pointed out and the court conceded, "invalidation of Proposition 8 in the underlying federal litigation did not result from any action or inaction by the Governor or

Attorney General but from a decision by the federal district court after a contested

trial."  Thus, it is far from necessary to vest initiative proponents with authority to represent the states interest to keep elected officers from nullifying measures the people adopt.

Faced with that inescapable reality, the court retreated from its ostensible concern with preventing initiatives from being nullified, to a concern with keeping them from being "undermined."  At one point, the court suggests that "the California initiative process may be undermined if a California initiative goes undefended in a federal proceeding."  Explaining at greater length, the court argued:

“If public officials refuse to provide [a competent and spirited] defense [of an initiative], the ability of the initiative proponents to intervene in the pending litigation, and to appeal an adverse judgment, is inherent in, and essential to the effective exercise of, the constitutional initiative power. To hold otherwise not only would undermine that constitutional power, it also would allow state executive branch officials to effectively annul voter-approved initiatives simply by declining to defend them, thereby permitting those officials to exceed their proper role in our state government‘s constitutional structure.”

But this is simply wrong.  The court emphasizes that it is affirming only a limited authority of initiative sponsors to defend initiatives, not to take any affirmative enforcement measures.  So assume that someone has brought suit to challenge the validity of an enacted initiative.  If the plaintiffs litigate in state court, the state courts are free to allow the initiative's sponsors to intervene as defendants, and once they do so, they may present any non-frivolous legal arguments in defense of the initiative they had proposed.  (Alternatively, the state court could let the sponsors participate as amicus curiae or "friends of the court," submit briefs, and engage in oral arguments.)  So, there is no risk of "effective nullification." 

On the other hand, if the plaintiffs litigate in federal court, they have to satisfy federal standing requirements.  If they do not have a sufficiently concrete and particularized injury as a result of the initiative, then the federal court will dismiss their suit, and the initiative will not be nullified.  But if the plaintiffs do have an adequate injury to proceed, then the initiative sponsors would not have to satisfy federal standing requirements to intervene as defendants -- there is already an adequate "case or controversy" (in the terminology of federal standing rules) between the plaintiffs and the state officer defendants who are by assumption refusing to defend the measure.  This is what happened in the Prop 8 litigation.  So, the initiative gets a "competent and spirited defense," and it therefore cannot be pejoratively labeled a state officer "nullification" if a federal judge concludes after an adversarial trial that the measure violates the federal constitution.  Only were state officers to refuse to defend and the federal court also to refuse to allow the sponsors to intervene as defendants would there remotely be a risk of nullification.  But then, either the federal appeals court might well deem it to be an abuse of the trial court's discretion to refuse such intervention -- nullifying the nullification worry -- or state law could much more narrowly vest proponents with authority to step into the state's shoes under those narrow circumstances for purposes of defending the initiative at trial.

So, perhaps the California Supreme Court’s opinion offers some justification for it concluding that it is necessary to use its power to create a rule (of state law) authorizing initiative sponsors to represent the state’s interests under certain rare conditions.  But once anyone has made “a full and robust defense” of an initiative at trial, and thus we can be confident that the trial court will be “aware of and address[] the full range of legal arguments that reasonably may be proffered in the measure’s defense,” a decision holding the measure unconstitutional is no improper nullification, whether or not that judgment gets appealed.  The California Supreme Court’s opinion thus has not justified extending the authority it by near-fiat gave initiative sponsors in today’s decision beyond defending the initiative the sponsors helped enact to appealing from trial court rulings invalidating the initiative.  It is unjustified to suggest that a law that is invalidated after a full adversarial trial has been somehow improperly “nullified” by a state officer’s decision not to appeal the trial court’s judgment.  Indeed, it is an insult to the integrity of federal trial court judges (who along with non-defending governors and attorneys general are the persons about whom the court is worrying).  True, a federal trial court might make a mistake.  But so might a federal appellate court.  And so might the California Supreme Court.  But the prospect of mistake, or even an actual mistake, cannot transform judgment into usurpation.  To the extent the California Supreme Court is worried about “the appearance of the fairness of the” federal judicial process, it is taking on the responsibility of a different level and branch of government: the federal judiciary.

The California Supreme Court’s only halfway real effort to justify its repeated afterthought of “or appeal” whenever it talks about proponents “defending” a measure is relegated to a footnote.  There, the court claims that “Ordinarily, … public officials who are defending a state law against a constitutional challenge can be expected to appeal an adverse trial court judgment to an appellate court.… The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power.”  This passage is awfully weak.  It shifts away from the court’s main trope about elected officers “nullifying” initiative measures to a much more nebulous claim about “undermin[ing] the initiative power,” and offers no empirical support for its claim about what is ordinarily done nor any normative argument about why the people of the state need someone besides elected officials to have the ability to take appeals from valid federal judgments holding initiatives unconstitutional for that legislative initiative power to be robust.

The court’s reasoning addressing the plaintiffs’ objection to creating new state law giving initiative sponsors the kind of authority at issue here is not much better.  The court argues that “because there is no reason to doubt that the California Legislature … would have authority to step in to assert the state’s interest in the validity of a statute enacted by the Legislature if the state’s executive officials have declined to defend the statute‘s validity in a court proceeding, we conclude that the people are no less entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf when public officials decline to defend the measure.”  But if the legislature were to intervene to defend a law, it would be pursuant to a vote of the legislature or perhaps one of its chambers, either directly authorizing intervention in a particular case, or an earlier vote vesting authority to intervene in legislative leadership, a house, a committee, or some other subset.  Here, even assuming the people (acting in parallel fashion to the legislature, by enacting law via the initiative process) are “entitled to have the state’s interest in the validity of a voter-approved initiative asserted on their behalf,” there is no evidence that the people have chosen to have the state’s interest on their behalf.  As Ted Olson emphasized at oral argument before the California Supreme court, although perhaps not as strongly as he might have, Prop 8 contained no clause granting standing to defend it to its sponsors.  Had there been such language, as there was in Prop 22 (the statutory ban on same-sex couples marrying adopted by the initiative process in 2000), then the same vote that adopted Prop 8 as an amendment to the state constitution also would have expressed the voters’ will to be represented by this particular self-appointed group of California voters.  But there was not.  So it is really the will of the California Supreme Court Justices, and not the will of the people, that appointed Prop 8 sponsors as champions of the people’s interests.

And the identity of these champions matters.  The court recognized that “Plaintiffs also contend that because the official proponents of an initiative measure are private individuals who have not been elected to public office, take no oath to uphold the California Constitution or laws, cannot be recalled or impeached, and are not subject to the conflict of interest rules or other ethical standards that apply to public officials, they cannot properly assert the state‘s interest in the validity of a challenged initiative measure.”  But the court’s rejection of this argument completely misses the mark. 

The court somewhat defensively replies that its ruling “does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question.”  But that’s exactly the plaintiffs’ point!  Unlike the attorney general and the governor, the sponsors of a measure are just one or more California voters.  They have not been elected, and therefore cannot be turned out of office by the voters, so this unaccountable collection of California voters cannot claim that basis of democratic legitimacy to represent the interests of the people of the state as a whole, which is what “the State’s interests” are. 

The fact that initiative sponsors “are properly subject to the same ethical constraints that apply to all other parties in a legal proceeding,” as the court feebly notes, does not go far enough.  One does not, merely by suing or defending, become obligated to uphold the California and U.S. Constitutions.  Unlike a governor or attorney general, therefore, initiative sponsors therefore can make arguments that are patently antithetical to the foundational law governing in California.  There was a reason that the Governor and the Attorney General of California chose not to appeal Judge Walker’s ruling:  They believed Walker was correct to rule Prop 8 unconstitutional.  When same-sex couples are being denied their basic constitutional rights every day that Prop 8 (or any other initiative that has been held unconstitutional by a trial court) is in effect, fidelity to the Constitution is absolutely a trait that we should want in those empowered to represent the state’s interest.  (The court’s arguments about “public interest” mandate actions and “private attorney general” cases are somewhat more helpful to it, but the fact that they were “initially recognized by judicial decision notwithstanding the absence of any specific constitutional or statutory provision expressly granting such authority” does not enhance their legitimacy.)

Regrettably, all of the shortcoming’s in the court’s analyses are probably somewhat beside the point.  The California Supreme Court as a general matter is the ultimate judicial authority on the content or meaning of California law.  Thus, the innovative and problematic principle it articulated is an authoritative articulation of state law.  The Ninth Circuit and even the U.S. Supreme Court are generally not able to hold that state law means anything different.

That does not mean that the Ninth Circuit would be completely compelled to grant standing just because of what the California Supreme Court said today.  Footnote 7 of the court’s opinion notes that the authority to appeal in California state court litigation follows merely from being a party at trial, but also that the rule is different in federal court, where even a party must satisfy federal standing requirements to be able to take an appeal.  Footnote 27 says that SCOTUS’s “decision in Arizonans for Official English imposes no impediment to a state court‘s determination that, under state law, an initiative proponent has the authority to intervene as of right in an action in state court challenging the validity of an initiative measure.”  Taken together, this provides support for an argument and leaves room for the Ninth Circuit to conclude that, in federal court under federal law, today’s decision by the California Supreme Court does not dictate the conclusion that the Prop 8 Proponents do indeed have standing to appeal Judge Walker’s decision.

However, based on the argument before the Ninth Circuit last December, most observers do not think that Judge Reinhardt wants to hold that the proponents lack standing.  He was clearly frustrated with the possibility that he might not be able to reach the merits of the constitutional challenge to Prop 8 and instead might have to dismiss the appeal on the grounds that the Proponents lack standing to appeal.  If this reading is right, he may be looking for a reason to grant them such standing, and today’s California Supreme court decision may provide him just what he’s looking for.

If that is the case, the panel can be expected to rule on the constitutional questions fairly quickly (likely after allowing the parties to submit briefs on the significance of today’s opinion and perhaps after allowing argument).  Then, each side can be expected to ask SCOTUS to agree to review the case.  (It’s a matter of discretion whether SCOTUS accepts most appeals.)  Since neither the plaintiffs nor the Prop 8 Proponents wanted to have a factual trial in the first case, it is possibly but not highly likely that either side would ask for en banc review by a larger panel of eleven Ninth Circuit judges before asking SCOTUS to get in on the act.  If the Ninth Circuit does rule on the merits, then a narrower, California-specific equal protection holding that Prop 8 was unconstitutional would be less likely to be reversed by SCOTUS than a broader right-to-marry ruling that would invalidate marriage restrictions in 44 states.  Judge Walker’s opinion contained both kinds of rulings.  Only time, though not that much of it, will tell what kind of ruling the Ninth Circuit will make.