“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]
[edited 20121208 to correct typo]