Unveiling Marriage Equality?

“’Cause maybe they’ve seen us and welcome us all”

SCOTUSblog has a “flash” symposium on the Supreme Court’s grant of review Friday, January 16, in the four marriage cases from the Sixth Circuit, Same-sex marriage and the 14th Amendment.  My entry, UnveilingMarriage Equality?, addresses the issues the Court did, did not, and could take up in the cases; hazards a prediction regarding the ultimate outcome of the litigation; offers the skeleton of a defense of my position that the Constitution requires marriage equality; and sounds a note of caution about the Supreme Court’s recent spotty record on equality issues and the need for sustained work to bring about a more equal society in the United States.

Sexual Orientation Discrimination Against Jurors Gets Heightened Scrutiny, Unconstitutional, Ninth Circuit Court of Appeals Holds

“We are all our own jury,/some day we’ll be put on trial.”

In a unanimous opinion authored by Judge Stephen Reinhardt, the U.S. Court of Appeals for the Ninth Circuit held that peremptory strikes of potential jurors on the basis of their sexual orientation is unconstitutional.  The court’s opinion in SmithKline Beecham Corp., dba GlaxoSmithKline v. Abbot Laboratories, decided January 21, 2014, may ultimately be even more significant for its holding that sexual orientation discrimination challenged under the Equal Protection Clause is subject to heightened scrutiny, not mere rationality review, a holding that goes beyond what the Ninth Circuit had said in Judge Reinhardt’s opinion in the Proposition 8 litigation (Perry v. Brown, holding California’s constitutional amendment stripping same-sex couples of the right to marry violated federal Equal Protection Clause because it could not survive even rational basis review).

The litigation began when SmithKline Beecham sued Abbot Labs over a dispute regarding a licensing agreement and the pricing of HIV meds (something Abbott dramatically raised following its agreement with SmithKline).  The case went to trial, and defendant Abbot used its first peremptory strike to remove a potential juror who indicated that he had a male partner.  The court’s opinion refers to him as “the only self-identified gay member of the venire,” but it cites no evidence other than the male juror candidate’s statements and pronouns referring to his partner, so he may well have been bisexual, a possibility the opinion fails to mention.  Either way, a strike of him because he was gay or bisexual would have been a strike based on his sexual orientation, so the court’s ultimate conclusion probably is unaffected by its assumption.

Although peremptory strikes differ from strikes “for cause” in that they do not require a striking attorney to identify bias on the part of the potential juror, they cannot be exercised for constitutionally impermissible reasons.  The Supreme Court held in Batson v. Kentucky (1986) that peremptory strikes based on race violate the Equal Protection Clause.  It subsequently extended that holding to cover peremptory strikes regardless of whether it’s a prosecutor or a defense attorney striking, and whether it’s a criminal or a civil case.  In J.E.B. v. Alabama ex rel. T.B. (1994) the Supreme Court extended Batson to hold that equal protection also forbids jury strikes based on sex.  It has not yet considered the question whether the same is true of strikes based on sexual orientation.

A significant part of the answer to that question is whether sexual orientation discrimination is generally subject to heightened scrutiny or just rational basis review under the Equal Protection Clause.  (J.E.B. said that where discrimination against a group receives only rational basis review, jury strikes on that basis do not violate equal protection.)  But that too is a question the Supreme Court has not expressly answered.  In its highest profile ‘gay rights’ cases – Romer v. Evans (1996), which invalidated an anti-lesbigay amendment to Colorado’s state constitution under the federal Equal Protection Clause, Lawrence v. Texas (2003), which struck down Texas’s same-sex only ban on oral and anal sex under the federal Due Process Clause , and United States v. Windsor (2013), which held that the section of the “Defense of Marriage Act” that ignored lawful marriages of same-sex couples violated equal protection – the Supreme Court has repeatedly failed to name and so definitively resolve the level of scrutiny that equal protection demands when government discriminates on the basis of sexual orientation.

Admitting this, the panel opinion had to decide whether sexual orientation discrimination is subject to heightened scrutiny.  Earlier Ninth Circuit precedent concerning the military’s “Don’t Ask, Don’t Tell” had faced a similar question regarding Lawrence v. Texas.  In Witt v. Department of the Air Force, the Court of Appeals had to decide what kind of scrutiny applied to the military exclusion of lesbigay people under the Due Process Clause.  Lawrence did not say, so the Court of Appeals had to look to “what the Court actually did,” that is, what kind of analysis it conducted.  Doing likewise here to make sense of Windsor’s equal protection holding, the Ninth Circuit concluded that Windsor’s analysis was inconsistent with the great deference and mandatory consideration of hypothetical state purposes required under minimal rational basis review.  Accordingly, the Ninth Circuit panel determined that heightened scrutiny applies under the Equal Protection Clause to sexual orientation discrimination.  Judge Reinhardt’s opinion also held that earlier Ninth Circuit case law applying only rational basis review to sexual orientation discrimination challenged as violating equal protection was no longer good law because of the Supreme Court’s decision in Windsor.  (Minor quibble: the panel’s opinion says that the Supreme Court in Lawerence v. Texas recognized one Supreme Court decision, Department of Agriculture v. Moreno (1973), as applying “a more searching form of rational basis review,” when it was only Justice O’Connor’s opinion concurring in the judgment that espoused that position.)

Then, acknowledging that the histories of discrimination against racial minorities, against women, and against lesbigay vary (actually, the court again ignored bisexual persons to focus on “gays and lesbians”), and that gay and lesbian people were not openly excluded from juries the same way women (of any races) and African Americans (of any gender) were, the court recounted some of the pervasive discrimination lesbigay people have historically faced in the U.S. in governmental employment, immigration law, and military service, grounded in degrading stereotypes.  This helped establish that anti-lesbigay jury strikes stem from and cause the same kinds of injustices, for individuals, groups, and the entire polity, that warrant interpreting equal protection to forbid race- and sex-based strikes:

 “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals. They tell the individual who has been struck, the litigants, other members of the venire, and the public that our judicial system treats gays and lesbians differently. They deprive individuals of the opportunity to participate in perfecting democracy and guarding our ideals of justice on account of a characteristic that has nothing to do with their fitness to serve.”

The Court of Appeals also rejected Abbott’s exhortation not to extend Batson to sexual orientation-based strikes in order to protect individuals’ privacy rights.  The court thought those concerns significant, but was confident that the privacy of potential jurors can be protected through other means.  The court also rejected Abbot’s argument that it should not reach the Batson extension issue because none of SmithKline’s legal claims should have been allowed to reach the jury.  The Ninth Circuit Court of Appeals recognizes no harmless error exception to Batson violations, and even if there were, at least one of those claims required jury trial, the court held, but the jury was tainted by the discriminatory strike.  Accordingly, the court reversed the trial court and remanded the case for a new jury trial.

If the reasoning of the court of appeals is sustained, it could have big implications for anti-lesbigay discrimination, including laws excluding same-sex couples from civil marriage.  It is not clear whether the full Ninth Circuit would likely vote for review by an en banc panel of eleven judges or whether the Supreme Court would be likely to grant review, should Abbot seek either.  There is no real conflict between Court of Appeals holdings on this, with the Ninth Circuit breaking new ground here.  The Court does not choose to hear “gay rights” cases very frequently, and it just decided Windsor in June of 2013.  On the other hand, it only takes four Justices to vote to grant review, and some Justices could feel that it might be good to decide the general equal protection level-of-scrutiny issue in a factual context that probably divides the U.S. public less than does the issue of marriage for same-sex couples.  The Supreme Court ducked that general question in Windsor; only time will tell whether it chooses to take it up in the jury service context.

Prop 8 Proponents Ask California Supreme Court to Stop Marriages

“If I make improper suggestions
…
Desperate but not serious”

Here they go again:  Bypassing the lower state courts, the Proponents of Proposition 8 have filed a petition for a writ of mandate (here) asking the California Supreme Court to order the clerks of the counties in California to stop issuing marriage licenses to same-sex couples.  It seems very unlikely that the California Supreme Court would exercise its discretion to take up this matter and then rule in favor of the proponents, especially since those proponents are or come very close to asking the state court to interfere with a federal court injunction.

In a nutshell, the proponents are arguing first that Prop 8 is actually constitutional, that federal judge Vaughn Walker was mistaken in ruling to the contrary after the trial on Prop 8, and that the U.S. Supreme Court has not disagreed with them because it dismissed the Prop 8 appeal on standing grounds rather than reaching the constitutional equal protection or right to marry issues.  Second, they argue that county clerks have a ministerial duty to enforce the marriage laws of the state, which in their view include Prop 8, and that by ordering them not to, State Registrar Tony Agurto, following the legal conclusion of Attorney General Kamala Harris, violated the provision of the California Constitution that bars administrative agencies and at least some governmental executive officials from refusing to enforce state laws on the ground that they’re unconstitutional unless an appellate court has made a determination that the state law at issue is indeed unconstitutional.  (Although the U.S. Court of Appeals for the Ninth Circuit did “make a determination” that Prop 8 is unconstitutional, the proponents of the measure argue that since the U.S. Supreme Court vacated that decision, it cannot satisfy this state constitutional clause.)  And, third, they argue that the issue is so important, implicating as it does (in their view) the efficacy of the state initiative process, that these supposedly lawless same-sex marriages must be stopped immediately.

Unless a majority of the California Supreme Court Justices are extremely peeved that the U.S. Supreme Court ruled that the Prop 8 proponents lacked federal court standing, this latest effort to revive Prop 8 (or at least to demonstrate to constituents the proponents’ need for funds to keep up their committed fight for the measure’s legal life) is unlikely to go anywhere.  It’s certainly unlikely to result in an immediate order against issuing marriage licenses to same-sex couples.  However important the rule of law and the California initiative process may be, the petition contains no explanation for why those cannot be vindicated through an orderly judicial process that resolves Prop 8’s constitutionality and an order at the end of it to resume enforcing Prop 8, if that judicial process concludes it really is constitutional.

Moreover, this petition dangerously veers into or close to asserting the power of state courts to interfere with federal court injunctions.  Indeed, the proponents’ arguments make claims about the federal court’s supposed lack of authority of have bound certain defendants in certain ways.  Given our system of federalism, and specifically of the supremacy of federal law, state courts just are not allowed to disregard or narrow federal court orders (as was made clear to the chagrin of the segregationist South in the mid twentieth century).  Even if they were right that the state Attorney General erred in concluding that county clerks are within the terms of the federal court injunction against Prop 8 as employees controlled or supervised by the state defendants, the proper route to clarify the scope of a federal court injunction is to return to that federal court and ask it to rule.

Finally, in what is hard to believe is a good faith mistake, the proponents do not acknowledge that the City and County of San Francisco was allowed by Judge Walker to intervene as a plaintiff challenging Prop 8.  Instead, they refer repeatedly to “the four plaintiffs,” meaning the two same-sex couples who were plaintiffs.  They then argue that because those couples are now married, the federal injunction cannot even apply to Los Angeles and Alameda Counties, where those couples reside.  (Again, that’s a question about the proper scope of the federal injunction that the state courts cannot do anything about.)  But since San Francisco was a prevailing plaintiff, and the federal court injunction prohibits Prop 8 from being enforced against it, at a very minimum it can continue to issue marriage licenses to same-sex couples even if no other county could (which I do not believe to be the case).  Because Californians can get a marriage license in any county regardless of their residence or where the wedding will be held in the state, the Prop 8 proponents desperate, last-ditch (one hopes!) petition here cannot stop marriage equality in the state.  The futility of their petition is, thus, one more reason why the California Supreme Court is likely to deny it.  For the sake of those same-sex couples planning marriages and weddings, I hope the court does so quickly.

Times Change

Oh there been times that I thought I couldn’t last for long

But now I think I’m able to carry on

As many across the U.S.A. celebrate Independence Day, I’m finally taking a moment to write briefly about a couple of the Supreme Court’s late June decisions from the end of what’s referred to as its October 2012 term (i.e., its sessions of hearing and deciding cases for 2012-13).  The Court by the narrowest margin invalidated a key provision of the Voting Rights Act, leaving another provision inoperative.  Yet by other five-to-four lineups, the Court also restored same-sex couple’s right to marry in California and struck down the federal so-called Defense of Marriage Act (“DOMA”), which required the federal government to discriminate against lawfully married same-sex couples.  One common theme of the Court’s decisions in the voting rights and marriage equality areas is the idea that times change, and with them potentially changes the constitutionality of government action.

In Shelby County, Alabama v.Holder, the five more right-leaning Justices on the Court (all appointed by Republican Presidents) held unconstitutional the “coverage formula” in Section 4 of the Voting Rights Act of 1964 (“VRA”), and thereby rendered inoperative the “preclearance” requirement of Section 5 of the VRA.  Chief Justice Roberts’s opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, and Alito, noted that it had upheld the constitutionality of the VRA after it was first adopted and after each of three earlier federal statutes reauthorizing and extending the VRA’s requirements.  In particular, Section 5 of the VRA prohibits covered jurisdictions, such as states or counties, from changing their voting practices without first getting “preclearance” from the Justice Department or from a three-judge federal court in Washington, D.C., which is only allowed if the change will have neither the purpose nor the effect of denying or abridging the right to vote “on account of race or color.”

Section 4 of the VRA contained a “coverage formula” specifying those jurisdictions to which this preclearance requirement applied.  It barred jurisdictions that had used things like literacy tests or “good moral character” requirements as preconditions for voting and had low voter turnout or registration in the 1964 presidential election.  Subsequent reauthorizations updated the date used to evaluate coverage, with nine states including Alabama and a number of counties across the nation covered by the preclearance requirement, and extended the requirement to cover a broader range of discriminatory practices.  The VRA also, however, had a “bailout” provision to allow jurisdictions to be relieved of the preclearance requirement provided they proved they had for ten years not used tests or devices, had not been denied preclearance for voting practice changes they sought, and had not lost been found by a court to have adopted voting changes with the purpose or effect of discriminating on the basis race or color.

It is this coverage formula that the Supreme Court struck down in Shelby County, and, since the statute otherwise contains no provision making the preclearance requirement apply to any states or counties, in practical effect the Court thereby also struck down Section 5’s preclearance requirement itself.  Although the Court had upheld the VRA as early as 1966, but now, “[n]early 50 years later, things have changed dramatically,” Chief Justice Roberts wrote.  He recognized that the improvement in disparities between black and white voter registration owe much to the VRA itself.  But today, the Court objected, coverage “is based on decades-old data and eradicated practices.”  Because the coverage formula applied only to some but not all states, the Court insisted that Congress “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”  In the eyes of the majority, “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor (all appointed by Democratic Presidents), dissented and would have upheld the coverage formula.  They did not deny that times change and that “conditions in the South have impressively improved since passage of the Voting Rights Act.”  But they also believed it relevant that “the covered jurisdictions have a unique history of problems with racial discrimination in voting.”  They pointed to a study “ignored by the Court” that reasonably was taken by Congress to show “that the coverage formula continues to identify the jurisdictions of greatest concern.”  They protested that “hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments” (the 13th, 14th, and 15th Amendments), “the Court does not even deign to grapple with the legislative record.”  For the dissenters, times change, but so too do the forms that discrimination takes, as born out by history and as the Congress’s that enacted and reauthorized the VRA attempted to combat by imposing the preclearance requirement.  The dissenting Justices would have deferred to Congress’s conclusion, when reauthorizing the VRA in 2006, that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”

The next day, in Hollingsworth v. Perry, the Court held five-to four (with Justices Scalia, Ginsburg, Breyer, and Kagan joining Chief Justice Roberts’s opinion) that the sponsor’s of California’s state constitutional amendment that had stripped same-sex couples of the right to marry lacked “standing” or the legal authority to take appeals from the trial court decision holding it unconstitutional.  Even though the Court did not reach the merits of the challenge to Prop 8 and so did not decide whether or not it in fact violated the Constitution’s Equal Protection Clause, this standing decision had the effect of letting same-sex couples marry again in the state for the first time since the measure was adopted in the November 2008 election.

The Court did reach the equal protection issue in UnitedStates v. Windsor, however, and five-to-four it held that DOMA Section 3, which limits the definition of “marriage” and “spouses” for federal law to male-female couples, unconstitutionally discriminated against same-sex couples validly married under state law.  Although the majority opinion by Justice Kennedy (which was joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor) did not state that DOMA was ever constitutional, it spoke in terms of changed times and changing understandings.

The Court noted that Congress acted preemptively in 1996 to ban federal recognition of same-sex couples’ marriages before any state allowed them, “as some States were beginning to consider the concept of same-sex marriage.”  But then states did begin to allow or recognize marriages between same-sex couples:

“[U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged.  For others, however, came the beginnings of a new perspective, a new insight.  Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.”

In the Windsor case, at issue was the federal government’s refusal to recognize Edie Windsor and Thea Spyer’s marriage, which New York did:  “After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.”  Times had changed, at least in New York, and the state’s determination to open marriage to same-sex couples “enhanced the[ir] recognition, dignity, and protection … in their own community,” something DOMA undermined, be design and in effect.  “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”  In the majority’s view,

“For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status.  This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. I t reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”  In denying recognition to this status across the board for federal purposes, DOMA violated constitutional equality principles; its purpose and effect were to express disapproval of same-sex couples whom states chose to protect as they realized the propriety of such protection. 

In Windsor Justice Kennedy did not, but might as well have, quoted his own language from the Supreme Court’s opinion in Lawrence v. Texas, the decision the Court issued ten years to the day earlier, striking down Texas’s law against certain kinds of sexual conduct by two people of the same sex.  There, he wrote that the people who wrote and adopted the Bill of Rights and Fourteenth Amendment “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Times change, and constitutional principles respond to those changes.

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]