New York Law School

Art Leonard Observations

Rumination on Prop8/DOMA Possibilities from the Supreme Court

Posted on: January 5th, 2013 by Art Leonard 15 Comments

I’ve been reading lots of speculation about what the Supreme Court might do in Hollingsworth v. Perry (the Proposition 8 case from California) and U.S. v. Windsor (the DOMA Section 3 case from New York). Both cases will be argued late in March. Both present the Court with questions of equal protection of the laws and, added at the instance of the Court, with questions of federal jurisdiction.

Most of the speculation I’ve seen seems to assume that the Court will produce a majority decision in both cases, but I’ve been thinking that the addition of the jurisdictional questions sets up a situation where it is highly possible that there will be no one opinion representing the views of the Court in one or both of these cases.

For example, in Hollingsworth, it is possible that several members of the Court, but not a majority, will agree that Holllingsworth and his colleagues, the official proponents of Proposition 8, do not have standing to appeal the district court’s decision. A straightforward application of Justice Ginsburg’s dicta on standing in the Arizona English case might suggest this outcome, although that view might not win a majority of the Court. Let’s say three or four members of the Court agree on this. Then let’s suppose that the remaining 5 or 6 members are split between those who would affirm either the 9th Circuit or the district court decision on the merits, and those who would reverse one or both on the merits. That would mean no majority opinion, and one would have to think about the permutations and combinations of views, and possible outcomes.

Say, for example, that three justices vote to reverse on the merits, three vote to affirm based on the 9th Circuit’s opinion, and three vote to dismiss the appeal on jurisdictional grounds. In that case, I would argue, Proposition 8 is dead and same-sex marriage is once again available and recognized in California. The result would be a brief per curiam explaining the disposition of votes, and at least three separate opinions – maybe even more than that – to chart the outcome. No national precedent would be set in such a case.

Consider a similar possibility in the DOMA case. From among the many certiorari petitions pending before the Court in cases challenging Section 3 of DOMA, they decided to grant the petition filed by the Solicitor General shortly before the 2nd Circuit ruling on BLAG’s appeal of the district court’s decision in favor of Windsor. This was a petition for certiorari in advance of decision, and, of course, the Solicitor General’s petition did not disagree with the 2nd Circuit’s decision because it hadn’t been issued yet! So it was appealing from a district court decision that held Section 3 violated the 5th Amendment’s equal protection requirement, using a form of rational basis review (not heightened scrutiny). Thus, theoretically, the 2nd Circuit’s subsequent ruling is not the decision from which appeal was taken, and the Court might even ignore it – or at least some members might ignore it, to avoid having to take on the issue of whether sexual orientation discrimination claims merit heightened scrutiny if they could rule in favor of Windsor by affirming the district court’s decision. But the Court added two jurisdictional questions to the case, and appointed a noted Harvard Law School professor, Vicki Jackson, to argue as amicus curiae on these questions.

One is whether the petitioner, the Solicitor General, presented the Court with a real “case or controversy” when, in fact, the petition asks the Court to affirm the result of the district court’s decision. But there is an interesting twist here. The Justice Department’s position has been, generally speaking, that Section 3 survives rational basis review but should be subjected to heightened scrutiny, which it does not survive! So DOJ technically disagrees with the analytical method used by the district court. There’s a controversy! Is it one that the Supreme Court will find sufficient to satisfy its constitutional jurisdictional concerns? And how many Justices wanted to add this question? Does it just take four Justices to add a question to a cert grant, just as it takes just four Justices, under the Court’s procedures, to grant a petition?

The Court also added the question whether BLAG has Article III standing to appeal the district court’s ruling.  I had thought that one reason the Solicitor General filed a petition in this case was to preserve the jurisdiction of the Court over the appeal, since there might be some question of BLAG’s independent standing to appeal the case. BLAG on its own, however, has a rather questionable status. The House of Representatives took no vote to authorize BLAG’s intervention at the time – BLAG is a committee constituted of the Speaker and the top two ranking members from the Democrats and the Republicans, and all of BLAG’s decisions on these DOMA cases have been taken on a 3-2 party line vote. Perhaps in response to concerns about BLAG’s representatives status, one of the first orders of business of the Republican majority in the new Congress, just convened, was to change House rules to designate BLAG as speaking in the name of the House (over protests by the Democrats). Does this retroactively take care of the standing problem? It will be interesting to see what Professor Jackson argues, having been appointed to argue that, among other things, BLAG lacks Article III standing.  Can the House confer standing on BLAG after the cert petition has been granted, and does this change in House rules suffice to allay the concerns of whichever Justices asked to add this question?

But consider what happens if the Court splinters in this case without a majority decision.  Suppose 3 or 4 Justices find that there is no case or controversy on appeal and that BLAG lacks Article III standing, while 3 or 4 Justices would vote to reverse on the merits, finding Section 3 to be constitutional, and one or two (maybe three or four?) are willing to find Section 3  unconstitutional, based on the reasoning of the district court (or perhaps adopting the reasoning of the 1st Circuit in Gill, the case on which they have not yet announced any cert decision)? There would be no majority on the merits, but the combination of the plurality for affirmance of the district court plus the justices who vote to dismiss for lack of jurisdiction would, presumably, result in what?  A district court decision that wasn’t appeal?  A district court decision that was affirmed as to result, de facto?  Does Edie Windsor get her tax refund?  Would it  be binding on the parties, such that the IRS must recognize same-sex marriages? To what extent would it be binding on anybody else?

Would the Obama Administration construe that as sufficient to justify abandoning the enforcement of Section 3? Up to now, their position has been that Section 3 is unconstitutional but they will enforce it unless the Supreme Court strikes it down or Congress repeals it.

Perhaps what is needed is for one of the other DOMA cases to get to a circuit court of appeals, for BLAG to achieve a reversal, and for the LGBT plaintiff group to then file a cert petition? That would get rid of jurisdictional problems.

But in the meantime, where would we be left?

Of course, this is all speculation on my part, and it possible that a majority of the Court will get to the merits and rule one way or the other on either or both of these cases. Because the level of judicial review is crucial to both cases, if a majority of the Court disagrees with the rational basis analyses from the district courts in these cases, that would become the big battleground on the merits.

15 Responses

  1. BobN says:

    “such that the IRS must recognize same-sex marriages”

    The IRS already recognizes same-sex marriages (and civil unions), at least in certain ways — usually to the detriment of the tax-payer — and when they want to. They force couples into income and expense equalization but still force separate filing. It’s a mess.

  2. Peter Linzer says:

    Art,

    This is very thoughtful and valuable. I may give to my new Con Law class.

    Pete

    • Eindach says:

      in his dissent in Lawrence that it can not be rielnccoed with denial of marriage equality. Ergo he is in a position in which he must respect stare decisis and follow precedent he has already admitted controls. That alone tips the balance. Still the gay rights decisions in which two more conservative justices came out in out favor point to a 7/9 decision in our favor so I really don’t know why they should not take the case.

    • Harry says:

      I, too, thought that there were two cases bofree SCOTUS that were rumored to be decided bofree the election and that the dominoes might fall after that. I am currently flying back and forth to Australia (where I have a Permanent Residency Visa Yay Oz!) every 5-6 weeks. My parents are nearly 80, and in bad health. My partner was trained as a nurse, but cannot risk coming to the US too often (she was warned off by Immigration last time she entered the US). I sure could use her help and support with my folks. We are in our late 50s, and both retired. The money and effort to have to live in two countries is tremendous.There is so much work to do

  3. Jay says:

    Thanks for this illuminating analysis. In regards to BLAG’s standing, I thought the question raised (by Judge White, I think, in Golinski) was whether BLAG had standing since it represents only one house of a bicameral legislature. I thought the analogy was that if it takes two houses to pass a law, it would also take both houses to defend a law. Do you think Professor Jackson will consider this angle?

    • Art Leonard says:

      I’m sure this will enter into the analysis. BLAG could not purport to represent Congress as a whole, since the Senate never expressed any interest in defending Section 3. Another issue, of course, is that prior to the rule change enacted by the House majority last week, it would be difficult to say that BLAG even represented the House. Only 5 members got to vote on the specific question whether to retain counsel to defend Section 3, and I don’t think they ever sought specific ratification from the House on that vote. I don’t recall whether the House ever voted on specific funding for intervention expenses.

    • Aroel says:

      I look at it more as the Supreme Court always had juiacdil review, they just didn’t really try it out until Marbury v. Madison. They can’t give themselves powers, they just decided to interpret the Constitution as meaning they always had that power, and nobody stopped them. Also, IMO the Federalist Papers (particularly the one I was quoting, #78) were pretty clear that juiacdil review was intended from the beginning Dec 5 ’12 at 3:02

      • Gregory says:

        The standing qietsuon is a double-edged sword. The California Supreme Court ruled that the Protect Marriage team had standing, at the request of the 9th Circuit. SCOTUS could also determine that the CSSC position regarding state law is irrelevant to Federal standing, and then might also invalidate the original trial court ruling for lack of Article III jurisdiction.That might be the safest move politically, because ultimately, the qietsuon of marriage is just not ripe yet for the Federal ruling that Olsen, Boies, and the pro Equality side seek. It let’s the Federal laboratory percolate a few more years, and avoids another culture war.

  4. david says:

    Can anyone give a decent opinion if once marriage is a right it can not be taken away?

    It is general construed that abortion could be reversed a federal right. Capital punishment is a state right and can be changed.

    Are any of these cases going to definitively state whether marriage is an individual or state right?

    • Rahul says:

      The standing qutseion is a double-edged sword. The California Supreme Court ruled that the Protect Marriage team had standing, at the request of the 9th Circuit. SCOTUS could also determine that the CSSC position regarding state law is irrelevant to Federal standing, and then might also invalidate the original trial court ruling for lack of Article III jurisdiction.That might be the safest move politically, because ultimately, the qutseion of marriage is just not ripe yet for the Federal ruling that Olsen, Boies, and the pro Equality side seek. It let’s the Federal laboratory percolate a few more years, and avoids another culture war.

  5. […] gay marriage cases, jurisdiction/standing issues could leave Court fractured like Turkish taffy [Art Leonard] Best result for gays, argues Jonathan Rauch, might be narrow or mixed decision [TNR] Beyond the […]

    • Vladimir says:

      in his dissent in Lawrence that it can not be reniccoled with denial of marriage equality. Ergo he is in a position in which he must respect stare decisis and follow precedent he has already admitted controls. That alone tips the balance. Still the gay rights decisions in which two more conservative justices came out in out favor point to a 7/9 decision in our favor so I really don’t know why they should not take the case.

  6. […] gay marriage cases, jurisdiction/standing issues could leave Court fractured like Turkish taffy [Art Leonard] Best result for gays, argues Jonathan Rauch, might be narrow or mixed decision [TNR] Beyond the […]

    • Dufan says:

      This IS great news but nothing to get esiattcc about. The only good thing is that for the couples that file and receive stays (and the percentage of those G/L couples filing with positive results has been very, very low) it MIGHT speed up the green card process for them if and/or when DOMA falls. I agree it is relevant to those families lives, but don’t let anyone kid you that this will affect but a very tiny minority of the estimated 36,000 bi-national families anytime soon. Once DOMA is down, there is still a long process of applying for permanent residency and it includes a substantial amount of time when the foreign partner can’t work in the U.S. If DOMA falls in 2013, it will still be 2014 and 2015 before most families can reunite with any degree of permanency. Get the list of gay-friendly lawyers from Immigration Equality, have a consultation with one of them, and start to make a REAL plan for your family. And of course an Obama defeat in November could be a real game-changer. Even though Section 3 of DOMA might still fall with the Supreme Court, there will be a bloody battle to the end. Add even the slightest nuance of bureaucracy to the green card process, and BOOM, a gay foe of a President (or Attorney General) could continue to derail one’s family unity and happiness for many years to come. Thanks to IE for the work they continue to do, but don’t think anyone’s bi-national family situation is changing anytime soon. This boat will continue to be a sssllllooooowwwwwww one.

    • Sam says:

      I heard the Prop-8 case was narrowly deienfd and thus would apply only to California even if SCOTUS decided to hear the case and regardless of how they ruled. Clearly, if SCOTUS opts not to hear the Prop-8 case then the 9th Circuit’s ruling stands thus making SSM legal in CA.DOMA is a dead-duck. Few believed it Constitutional when it was signed into law. We finally have cases that test its Constitutionality.

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