On January 22, attorneys defending against constitutional challenges to California Proposition 8 and Section 3 of the federal Defense of Marriage Act filed their briefs on the merits with the United States Supreme Court. Links to the briefs can be found on the Supreme Court’s website: click on the Docket box on the left side of the site and there is a link to the special page set up for these cases (Hollingsworth v. Perry; United States v. Windsor).
Both briefs struck me as extremely well written and well argued, in light of the enactments that the attorneys had to defend in these cases. In Hollingsworth v. Perry, the proponents of Proposition 8 – which inserted into the California Constitution a provision that only a marriage between one man and one woman would be valid or recognized in California – are appealing a ruling by the 9th Circuit Court of Appeals that the enactment of Proposition 8 violated the 14th Amendment’s Equal Protection Clause by withdrawing from same-sex couples, without any rational basis, a right to marry that had previously been recognized by the California Supreme Court. Their counsel of record is Charles Cooper, a leading conservative appellate advocate who served in the Reagan Administration. In United States v. Windsor, a majority of the Bipartisan Legal Advisory Group of the House of Representatives argues that Congress did not violate the equal protection requirements of the 5th Amendment in 1996 when it adopted Section 3 of the Defense of Marriage Act, which provides that for all purposes of federal law only different-sex marriages will be recognized. Their counsel of record is Paul Clement, who was Solicitor General of the United States, representing the government in the Supreme Court, during George W. Bush’s second term. (In an interesting irony, co-counsel for the Respondents in the Prop 8 case is Ted Olson, who was Solicitor General during George W. Bush’s first term.)
Hollingsworth and his co-petitioners were the people who formed ProtectMarriage.com, an organization that proposed the California initiative measure (anticipating that the California Supreme Court might rule in favor of same-sex marriage in a then-pending case), secured the signatures to put it on the ballot, and coordinated the campaign for its enactment. When the American Foundation for Equal Rights filed suit challenging the measure in 2009, they sued the governor and other state officials, but none of those defendants was willing to argue in support of Proposition 8, so the district court allowed the Hollingsworth group to intervene as defendants. They lost, as District Judge Walker found that same-sex couples have a constitutional right to marry. The 9th Circuit affirmed Judge Walker’s ruling that Proposition 8 was unconstitutional, but on the purportedly narrower ground that California’s voters had no rational basis to rescind the right to marry. A subsidiary issue in the case was whether the appellants had constitutional standing to bring the appeal, inasmuch as the named defendants in the case – the governor and other state officials – declined to appeal.
In its order granting the petition for review, the Supreme Court revived the standing issue, so the questions before the Court are two: Does the 14th Amendment prevent California from from defining marriage as solely between a man and a woman, and do the proponents of Proposition 8 have proper standing to appeal the district court’s ruling? The January 22 brief tackles both questions.
While the case was pending before the 9th Circuit, that court asked the California Supreme Court for an advisory opinion on the question whether initiative proponents are authorized under California law to represent the state’s interest in defending its constitutional provisions against a federal court challenge. The California Supreme Court answered that question affirmatively, leading the 9th Circuit to find the standing requirement to be met. The brief argues in support of the 9th Circuit’s conclusion on standing, pointing out that the Supreme Court has in the past recognized the right of a state to determine who, apart from state officials such as the Attorney General, is authorized to represent the state’s interest in a case where the state does not itself undertake such representation. Of course, the California Supreme Court’s opinion only dealt with California law. The question whether the Proponents of Proposition 8 have appellate standing in federal court is a matter of federal law, and it is likely that the American Foundation for Equal Rights, representing the challengers of Proposition 8, will have strong counter-arguments to make when their brief is filed next month.
Moving on to the main question, the brief pitches the case as being about federalism – the division of authority between the state governments and the federal government. Traditionally, the question of who could marry has been considered a question of state law and, as the brief argues, is a policy question that has traditionally been determined through the legislative process. California’s constitution allows the people to legislate directly by initiative, both to enact statutes and to amend the state constitution. An initiative to ban same-sex marriage by statute was actually passed in California more than a decade ago, and that statute was declared unconstitutional under the state constitution by the California Supreme Court in 2008, leading to the period of same-sex marriages in California. Proposition 8 countered that ruling by enacting a constitutional amendment. The brief argues that this illustrates the democratic process at work, and argues that the federal courts should not interfere with this process by recognizing a federal constitutional right to same-sex marriage. The brief points out that if the Court rejects the challenge to Proposition 8, gay rights groups in California have already indicated that they will try to put an initiative on the ballot to repeal the Prop 8 amendment, a further example of the political process at work.
But they don’t rest only on the federalism point. They also argue, as they did to the 9th Circuit, that California has a rational basis for treating same-sex and different-sex couples differently. Indeed, they argue – as the brief filed in the DOMA Section 3 case also argues, that because of the procreative capacities of different-sex couples and the lack of direct procreative capacities of same-sex couples, these couples are not “similarly situated,” and thus present no equal protection issue from differential treatment. They argue that the equal protection clause is only implicated if “similarly situated” people are treated differently, citing prior Supreme Court cases as authority.
Even if the Court finds that there is an equal protection issue, they argue, it would be rational for California to distinguish between different-sex and same-sex couples, in light of the long history of marriage as exclusively a heterosexual institution. They repeat the “channeling procreation” argument that proved a winner for opponents of same-sex marriage in some of the other state supreme courts, including New York, Maryland, and Washington. Ironically, in each of those states where the highest court rejected same-sex marriage claims, the legislatures ultimately came around to enacting marriage equality laws, and in Maryland and Washington, those laws were ratified at the ballot box this past November. These outcomes would be cited by the Proponents as an example of why the Supreme Court should abstain here and allow the political process to work.
They are certainly cited by Paul Clement in his brief for the House Committee in the DOMA case. As in the Prop 8 case, the defenders of DOMA have adopted federalism as their main argument. They contend that Section 3 of DOMA was a rational response by Congress to the unfolding situation in the mid-1990s after the Hawaii Supreme Court ruled in 1993 that same-sex couples might have a right to marry under the Hawaii constitution. DOMA was passed just as the Hawaii case was going to trial. Some commentators were suggesting that if the Hawaii courts ruled for same-sex marriage, same-sex couples from around the U.S. could go to Hawaii, marry, and demand recognition of their marriages from their home states and from the federal government. The issue became embroiled with the 1996 federal elections, as potential presidential and congressional candidates rushed to take positions against same-sex marriage, as public opinions polls showed overwhelming opposition to same-sex marriage by the public. Congress’s response in DOMA was that states would not be required under federal law to recognize same-sex marriages contracted in other states, and that the federal government would not recognize them for any purpose.
The brief filed on January 22 argues that this was a rational, tempered response to the situation based on federalism concerns, under which the states as sovereign bodies would retain control over the definition of marriage within their borders and the federal government could maintain national uniformity for the application of federal law by adopting the traditional definition of marriage then in effect in every state. The brief argues that the Constitution does not take any position on the definition of marriage, leaving states free to define it however they like for purposes of state law and leaving the federal government to define it for federal purposes. Customarily the federal government has treated as married people who are lawfully married under the laws of their state, but the brief argues that there is no constitutional requirement for this, and that Congress has at times adopted a particular definition of marriage, most notably in some provisions of the tax code. The brief contends that putting the traditional different-sex definition of marriage into federal law was consistent with Congress’s understanding of what it was doing when it passed the hundreds of different statutes that take marital status into account for purposes of federal benefits, rights, and entitlements, and that Congress could rationally anticipate that if some states adopted same-sex marriage, the lack of a uniform federal definition might lead to administrative confusion, inequities, and uncertainties, as well as creating overnight new classes of beneficiaries for federal benefits that could impost significant costs.
The brief also directly takes on the 2nd Circuit’s ruling that DOMA Section 3 should be reviewed under the “heightened scrutiny” standard, which would put a higher burden of justification on the government in defending the law. Making essentially the same argument that Cooper made in the Prop 8 brief, Clement argues that same-sex and different-sex couples are not similarly situated for purposes of an equal protection analysis, and that Section 3 does not directly discriminate on the basis of sexual orientation, although he acknowledges that Section 3 adversely affects gay people by excluding same-sex married couples from federal recognition.
The Supreme Court has traditionally focused on four factors in deciding whether heightened scrutiny applies in particular case: whether the disadvantage persons lack political power, whether the characteristic at issue is relevant to the government’s legitimate interests, whether the characteristic is “immutable” (beyond the individual’s control), and whether there is a history of discrimination against the persons disadvantaged by the challenged law.
Clement argues that recent history shows that gay people are not politically powerless. Indeed, reciting recent political history, he claims just the opposite. “In short,” argues the brief, “gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” The brief contends that gay people have gotten to the point where they can effectively contend in the political and legislative process and don’t need the assistance of heightened scrutiny by the courts to protect their interests. He also contends that there is not actually a long history of discrimination against gay people by the federal government, citing gay historians to the effect that most overt discrimination dates back to the early 20th century. He cites historians who contend that the concept of “the homosexual” is of relatively recent vintage, dating only to the mid-19th century, and so anti-gay discrimination does not have the ancient roots of racism and sexism. This conveniently overlooks the traditional English capital punishment for “sodomites,” Biblical injunctions for stoning, and host of horrors. (Anybody know where the label of “faggots” came from? Burning gays alive at the stake in medieval times.) So much for ancient roots of discrimination…
As to the “legitimate” interest of government in distinguishing between same-sex and different-sex couples, Clement’s brief channels the same arguments as the Prop 8 brief about procreation.
Reading these briefs, one is struck by what is omitted as well as by what is included. Neither brief goes in for gay-bashing. Neither brief contends that the people of California or the 1996 Congress could enact a discriminatory rule on marriage out of moral disapproval of homosexuality. Neither brief contends that gays are inadequate as parents. They are both carefully written to project a matter-of-fact tone about rational decision-making.
What they leave out – what is, indeed, surprisingly absent from an argument about the right to marry — is any reference to love and affection as having anything to do with marriage. Indeed, both briefs suggest that marriage is about children, not about the spouses, and that the great “danger” of “redefining” marriage to be “genderless” would be to make the prime focus on the marital partners instead of the family. Neither brief acknowledges the substantial percentage of same-sex couples raising children and the ways in which exclusion from marriage may be harmful to their children, instead harping on studies showing the disadvantages incurred by offspring of unmarried women who are raised without a father in the picture. Neither brief has anything to say about how having a legally-recognized marital relationship contributes to the well-being of the partners, or why same-sex couples shouldn’t enjoy the same well-being as different-sex couples.
Both briefs embrace an anachronistic view of the family that treats as virtually irrelevant the huge structure of legal rights and responsibilities attendant to modern marriage in America, paring the institution down to the rudimentary essentials of marriage in the pre-modern state. In other words, they are appealing to the “originalists” on the Court, as Cooper makes clear in his brief by expressing incredulity that same-sex couples would contend that the generation that enacted the 14th Amendment in 1868 intended to confer the right to marry on same-sex couples. Those members of the Supreme Court who regard the 14th Amendment as establishing general concepts of fairness and equality rather than a specific image based on mid-19th century life will, one hopes, reject this view, and Justice Anthony Kennedy, the “swing voter”, would seem to reject it as well in his concluding statement in Lawrence v. Texas, albeit in the context of the due process clause: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment  or the Fourteenth Amendment  known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that 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.”
A month from now, the challengers of Prop 8 and DOMA Section 3 will file their briefs, and Cooper and Clement will receive their responses. The cases will be argued on March 26 and 27.