Equal Is Equal* (*some exceptions may apply): Marriage Equality in Texas and Pidgeon v. Turner

“Found alternative sides to the things that were said”

Acting in Pidgeon v. Turner (HT @JoeDunman for the opinion copy), the Supreme Court of Texas (SCOTX) has gratuitously protracted the efforts of the city of Houston to treat its lesbian, gay, and bisexual employees constitutionally and hence equally. The court unanimously reversed a lower appeals court’s order allowing Houston to pay equal benefits to married employees whether they are in same-sex couples or different-sex couples. SCOTX then sent the case back down to the trial court for pointless proceedings that can only have one possible outcome under current U.S. Supreme Court precedent – affirmation of Houston’s practice and rejection of the claim that it was unlawful.

The background of the Pidgeon case goes back to the Supreme Court of the United States (SCOTUS) and its first marriage equality holding. On June 26, 2013, SCOTUS decided Windsor v. United States. Windsor held that the heart of the so-called Defense of Marriage Act (DOMA), which denied federal recognition of lawfully state-licensed marriages of same-sex couples, violated constitutional equality principles. In response and on the advice of counsel blessed with more brain cells than ideological fervor, the city of Houston sensibly concluded that it was unconstitutional to deny employees spousal benefits if they had married a same-sex spouse lawfully in another state or country. Then-mayor Annise Parker (later replaced by Sylvester Turner) accordingly directed the city to provide such benefits. A month later, Houston taxpayers and voters Jack Pidgeon and Larry Hicks sued the mayor and city (collectively, “the city”) to enjoin provision of such benefits, contending that it violated various Houston and Texas laws limiting marriage to different-sex couples. Pidgeon and Hicks won in the trial court, but the city appealed.

While the appeal was pending, on June 26, 2015, SCOTUS issued its second marriage equality decision in Obergefell v. Hodges. Obergefell combined cases from four different states and four lower federal courts, but the decision swept even more broadly. Although the Court ruled that “the State laws challenged by Petitioners in these cases are now held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite- sex couples[,]” it also made clear that “same-sex couples may exercise the fundamental right to marry.” Full stop. All same-sex couples, not just those in a few states. Indeed, the Court noted that part of why it took up these cases was that disagreements among lower courts had “caused impermissible geographic variation in the meaning of federal law.” The Court held as well that “there is no lawful basis for a State” – any state – “to refuse to recognize a lawful same-sex marriage performed in another State on the ground of its same-sex character.” And the Court underscored that “The Constitution … does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” 

Under this reasoning, if same-sex couples were allowed to marry but not given the same benefits, they would not be treated equally, and this then would appear not to be marriage “on the same terms” as different-sex couples. Hence the Texas appeals court in Pidgeon’s case reversed the trial court’s injunction against the city.

Convinced of the righteousness of their cause, Pidgeon and Hicks tried to appeal to SCOTX. Like SCOTUS, most of SCOTX’s jurisdiction is discretionary. And the Texas Justices originally denied review in the case on September 2, 2016 – a fact Justice Boyd omits from his recitation of the procedural history of the case in his opinion for the court in Pidgeon. Then, following a mail campaign and pressure from top Texas Republican officials including the Governor, Lt. Governor, and Attorney general (see this Texas Tribune account), the court reversed course and granted review on the day of Donald Trump’s inauguration. (Today SCOTX revealed in its opinion that it treated all such “emails, letters, and postcards” as friend of the court briefs. I’m reasonably confident this is highly unusual as a general matter, but maybe a Texas procedure maven can shed light on whether it’s common practice for SCOTX.)  It bears noting here that all of the Justices on SCOTX face retention elections periodically, with three of them up in 2018, which seems likely to make them more susceptible to public pressure as they try to interpret law.

In its ruling, SCOTX’s primary procedural defense of taking up the case is its claim that the lower court erred in telling the trial court to revisit the case consistently with Obergefell and a Fifth Circuit U.S. Court of Appeals case, DeLeon v. Abbott. De Leon held Texas’s laws excluding same-sex couples from marriage unconstitutional, and SCOTX is right that its reasoning was not generally binding on Texas state courts. But if that was plain error, it was harmless error, as Obergefell made clear as a matter of supreme, federal, constitutional law that De Leon was right.

On the merits, SCOTX remanded because the Justices “agree with Pidgeon that the [U.S.] Supreme Court did not address and resolve that specific issue [of whether government employee spousal benefits must be provided equally] in Obergefell. ‘Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best . . . .’ Coker v. Whittington, 858 F.3d 304, 307 (5th Cir. 2017). The Supreme Court held in Obergefell that the Constitution requires states to license and recognize same-sex marriages to the same extent that they license and recognize opposite-sex marriages, but it did not hold that states must provide the same publicly funded benefits to all married persons, and—unlike the Fifth Circuit in De Leon—it did not hold that the Texas DOMAs are unconstitutional.” (Obergefell made plain that they are unconstitutional.)  And, disingenuously or shockingly inept, SCOTX cited SCOTUS’s ruling four days earlier in Pavan v. Smith to support its claim that Obergefell does not clearly require equality in government treatment of married couples:  “Already, the Supreme Court has taken one opportunity to address Obergefell’s impact on an issue it did not address in Obergefell, and there will undoubtedly be others. See Pavan, ___ U.S. at ___, 2017 WL 2722472, at *2.” said Pidgeon.

Pavan addressed a constitutional challenge to Arkansas’s refusal to list both spouses of two married female couples on the birth certificates of their children. Because Arkansas law provides that a husband is generally to be listed on the birth certificate when his wife gives birth, the couples had correctly argued that Obergefell’s equality mandate required that a wife be similarly listed when her wife gives birth. The Arkansas Supreme Court (ASC) disagreed, and the couples sought review from SCOTUS. 

Rather than grant review and receive full briefing and hold argument about whether or not this view of Obergefell is correct, however, SCOTUS summarily reversed ASC. As noted in a dissent in Pavan by new SCOTUS Justice Neil Gorsuch, installed by Donald Trump after Senate Republicans acted to deprive President Obama of his constitutional authority to fill Justice Scalia’s seat, “[s]ummary reversal is usually reserved for cases where ‘the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.’” The majority in Pavan apparently thought that was the case. Obergefell, they noted in the first sentence of the opinion summarily reversing ASC, explained that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” Because Arkansas’s refusal to list both married mothers on birth certificates “infringes Obergefell’s commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage,’ [quoting Obergefell], we reverse the state court’s judgment.” “Obergefell proscribes such disparate treatment[,]” SCOTUS explained. Thus, SCOTUS understands, as would reasonable people not hell bent on undermining marriage equality, that Obergefell’s interpretation of the Constitution means that government cannot treat married same-sex couples differently from married different-sex couples.

In trying to limit the reach of Obergefell and portray that case as leaving open for debate matters it clearly does not, ASC’s Pidgeon decision sinks even further. It contends that “[o]n the same day the Supreme Court issued its per curiam opinion in Pavan, it also granted certiorari in another case involving a same-sex-marriage issue Obergefell did not address. See Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015), cert. granted sub nom. Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, — U.S.L.W. — (U.S. June 26, 2017) (No. 16-111). The Court’s decision to hear and consider Masterpiece Cakeshop illustrates that neither Obergefell nor Pavan provides the final word on the tangential questions Obergefell’s holdings raise but Obergefell itself did not address.” This is risible. (Accord, Joshua Block in this tweet.)

Masterpiece Cakeshop is about the constitutional rights (religious and/or expressive) of people who want to resist a state anti-discrimination law that would bar a maker-seller of wedding cakes from discriminating against those who want them for a wedding of a same-sex couple. It is not about what equality of treatment the Constitution requires of government to extend to different-sex and same-sex couples who marry. Masterpiece Cakeshop truly is, at best, tangential to Obergefell and its vindication of same-sex couples’ constitutional right to marry and right to equal protection. Pavan and Pidgeon, however, are clearly about the equal treatment of married couples, same-sex or different-sex. And the teaching of Obergefell and Pavan are pellucid: equal is equal.

That is what the Texas trial court should now say on this pointless remand in Pidgeon, and if it does not, it is what the state appeals court and if necessary SCOTX should say. SCOTX claimed that “Pidgeon contends that neither the Constitution nor Obergefell requires citizens to support same-sex marriages with their tax dollars, but he has not yet had the opportunity to make his case.” He is “entitled to a full and fair opportunity to litigate [his] position[] on remand,” SCOTX said. But there was no need to disrupt the proceedings that would have happened on remand by granting review of the Texas Court of Appeals decision. And since SCOTX in Pidgeon vacated the trial court’s temporary injunction against Houston’s providing equal benefits, this is ultimately just political theater. Harmful political theater, though, designed to give aid and comfort to those who would continue to resist the Supreme Court’s constitutional equality decision in Obergefell and perhaps even to provide an occasion for SCOTUS to revisit marriage equality if more judges of Neil Gorsuch’s ilk find their way onto the U.S. Supreme Court.

The Louisiana Marriage Inequality Decision and the Missing Link

“It’s here the family’s broken

And it’s here the lonely say

That the heart has got to open

In a fundamental way

Democracy is coming to the U.S.A.”

On September 3, 2014, Judge Martin Feldman became the first judge since the Supreme Court’s 2013 decision in United States v. Windsor to hold against the constitutional claims of same-sex couples seeking the right to marry.  In Robicheaux v. Caldwell (opinion here), Judge Feldman upheld Louisiana’s statutory and state constitutional provisions barring same-sex couples from marrying and refusing recognition to the lawful marriages they enter in other jurisdictions.  Breaking with a staggering string of decisions unanimously affirming that the Constitution guarantees same-sex couples marriage equality, the Robicheaux decision is rife with heterocentric prejudice, disparagement of the numerous judges who have ruled otherwise, democracy fetishization at the expense of the judiciary’s rights-protecting role, and logical gaps.  Sadly for the people of Louisiana, whose rights are being denied daily, it may be some time before this ruling is corrected on appeal; with the Fifth Circuit stocked with right-leaning judges, waiting for a Supreme Court decision may prove necessary.

The opinion’s heterosexist perspective is most clearly on display when Judge Feldman characterizes the plaintiffs’ interests as “personal, genuine, and sincere lifestyle choices.”  The notion that for lesbigay people marrying is merely a “lifestyle choice,” whereas marriage is some central, “fundamental” right and institution for heterosexually identified persons, is deeply offensive.   This language resonates with the unfortunate trope, oft applied to lesbigay people, of what legal scholar Marc Fajer has called the “sex-as-lifestyle” presumption.  As one lesbian comic quipped years ago, why is it that straight people get lives but gay people only get lifestyles?

The judge’s opinion also displays its bias in depicting a dystopian future that may follow if the Pelican State allows same-sex couples to marry.  “Perhaps, in the wake of today’s blurry notion of evolving understanding, the result is ordained.  Perhaps in a new established point of view, marriage will be reduced to contract law, and, by contract, anyone will be able to claim marriage.” (emphasis added)  Seemingly, then, he thinks same-sex couples devalue marriage.

Judge Feldman’s opinion sets himself up as the voice of reason in the face of “this passionately charged national issue,” as his opening paragraph characterizes it.  This is in contrast to the many, many state and federal judges who have held discriminatory marriage laws unconstitutional, apparently not in good faith.  He impugns either their intellect or their integrity:  “That federal courts thus far have joined in the hopeful chorus that the tide is turning seems ardent and is arguably popular, indeed, poignant, outcome (whether or not credibly constitutionally driven).” [sic, sic, sic] Perhaps the judge thinks that these courts are in cahoots with advocacy organizations like Lambda Legal, the ACLU, and the National Center for Lesbian Rights, for he informs us (emphasis added) that he “has arduously studied the volley of nationally orchestrated court rulings against states whose voters chose in free and open elections, whose legislatures, after a robust, even fractious debate and exchange of competing, vigorously differing views, listened to their citizens regarding the harshly divisive and passionate issue of same-sex marriage.”

That is just one example of Judge Kelly’s fetishization of democracy at the expense of the intended independent role of the federal judiciary.  (His solicitude for democracy is inconsistent, for he excoriates the Defense of Marriage Act for its effect on New York’s “democratically debated and then adopted” law allowing same-sex couples to marry but does not note that DOMA itself was “democratically debated and then adopted.”)  At the outset his opinion sets up the “lifestyle choices” of lesbigay persons – or so I assume, since “lesbian,” “gay,” and “bisexual” appear nowhere in the opinion, and even “homosexual” appears only once in a direct quotation, perhaps reflecting discomfort in even acknowledging lesbigay people as a group of people –as clashing with “convictions regarding the value of the democratic process.”  He refuses to apply any heightened scrutiny to sexual orientation discrimination because the Supreme Court has never held that to be required – true enough, but neither has the Court held such scrutiny forbidden – and because, he says, doing so would “demean the democratic process.”  He repeatedly quotes the late Justice Lewis Powell’s dissent in a death penalty case, touting Powell’s “emphatic trust in deference for free and open debate in a democracy” [sic].

 “Same-sex marriage is not recognized in Louisiana,” Judge Feldman writes, “and is reasonably linked to the democratic process.”  The state’s discriminatory marriage laws, its “regime,” he says, “pays respect to the democratic process; to vigorous debate.”  He credits Louisiana’s assertion that it has “a legitimate state interest in safeguarding that fundamental social change, in this instance, is better cultivated through the democratic process” [sic].  But as a matter of constitutional doctrine, that cannot be right.  Most government discrimination challenged under the Equal Protection Clause is subject only to a deferential form of judicial scrutiny, “rational basis review,” which requires only that the government action have a loose connection (be “rationally related”) to a “legitimate governmental interest.”  If a preference for proceeding via the democratic process counted as a legitimate governmental interest (which he seems to say, since “fundamental social change” is offered as an example, not a limit to his reasoning), then no statute or initiative or referendum would fail rational basis review, for a state could always claim that its democratically adopted law forbidding X or requiring Y is a rational way of preferring that policy on X or Y be set democratically.

The judge protests that it is not his place “to resolve the wisdom of same-sex marriage.”  But no one was asking him to.  He was asked only to rule on the plaintiffs’ claimed constitutional rights.  It is therefore somewhat baffling that one of Justice Powell’s dissenting pronouncements Feldman thinks pertinent is the Justice’s claim that “[i]n a democracy the first indicator of the public’s attitude must always be found in the legislative judgments of the people’s chosen representatives.”  Public attitudes are not generally relevant to constitutional rights.  As U.S. Court of Appeals judge Richard Posner explained the next day in an opinion holding Indiana’s and Wisconsin’s marriage bans unconstitutional, “[m]inorities trampled on by the democratic process have recourse to the courts; the recourse is called constitutional law.”

Judge Feldman either does not agree, or is inept insofar as equal protection law goes, or let his own “passions” lead him doctrinally astray.  For his opinion failed to apply the doctrine he announces.  Even if sexual orientation discrimination did not deserve heightened judicial scrutiny, as Feldman rules, it would still be subject to rational basis review, as Feldman also says.  But as I already noted, this means that the refusal to let same-sex couples marry or recognize same-sex couples’ marriages from other jurisdictions must bear a rational relationship to a legitimate governmental interest.  Even if one granted, as Feldman holds (and falsely attributes to Justice Kennedy’s opinion for the Supreme Court in Windsor) that Louisiana has a “legitimate interest in linking children with intact families formed by their biological parents,” the exclusion of same-sex couples must still somehow rationally relate to that interest.  Yet Feldman’s opinion nowhere ever even tries to provide any link between excluding same-sex couples from civil marriage and (somehow) linking children to intact bio families.

I’m not saying Judge Feldman is a Neanderthal, but his opinion upholding Louisiana’s marriage discrimination has a missing link, one that in combination with its other deficiencies should earn it a failing grade, or at best an Incomplete. 

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]

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.