On the tenth anniversary of its oral argument in Lawrence v. Texas, the historic 2003 ruling striking down laws against consensual gay sex, the U.S. Supreme Court took up the contentious issue of same-sex marriage on March 26, 2013, having granted a petition by four of the proponents of Proposition 8 to review the lower courts’ rulings that the California anti-same-sex marriage constitutional amendment (adopted by voters in 2008) violates the Equal Protection Clause of the 14th Amendment. After reviewing the written transcript and audio recording of the argument, this observer is persuaded that, at least as of today, there is no majority on the Court to rule one way or the other on the merits of this case. But it is possible that the oral argument tomorrow on the constitutionality of Section 3 of the federal Defense of Marriage Act may cast further light on what will happen when opinions are announced (most likely in June), since many of the underlying arguments are the same.
Charles Cooper appeared for the Petitioners, Theodore Olson for the Respondents (plaintiffs, two same-sex couples who brought the case in federal district court in San Francisco after having been denied marriage licenses because of Proposition 8), and Donald Verrilli, Jr., Solicitor General of the United States, appeared as “amicus curiae” (friend of the Court) to present the federal government’s position in support of the Respondents.
The Court had allocated an hour for this argument, but eight of the Justices were so fully engaged in questioning and responding to the lawyers’ arguments that they allowed the session to run for about an hour and a half, the extra time being attributable mainly to the question that the Court added when it granted the petition to review this case: Whether the Petitioners (who had intervened as defendants in the district court and then appealed the district court’s ruling to the 9th Circuit and ultimately to the Supreme Court) had “standing” as required by the Court’s precedents.
The Court’s addition of this question signaled that at least four of the Justices thought it was an important question, and the arguments back and forth this morning reinforced that point. Chief Justice Roberts interrupted each of the lawyers at the outset of their presentations, cutting off their attempts to argue the merits by asking them first to address the standing issue, and all the Justices participated in the questioning except Justice Clarence Thomas, who never asks questions during oral argument and, to judge by the transcript and audio recording, said not a word during this one. Roberts didn’t redirect Cooper back to the merits until he had used up a substantial portion of his argument time on standing, and he also allowed the standing issue to eat up a substantial portion of Ted Olson’s time.
The Petitioners’ argument on standing is simple: The California Supreme Court, in an advisory opinion requested by the 9th Circuit, held as a matter of California law that initiative proponents have standing to defend their initiative if the state officials who would normally provide such a defense refuse to do so. Their standing is not based on the “individualized injury” that the Supreme Court normally requires, but instead on their designation as representatives of the state’s interest. This reasoning struck the 9th Circuit as sufficient, but some of the Justices had problems with it. Olson, arguing for Respondents, harped on the point that initiative proponents are not officers of the state, not accountable to the state, not subject to the control of the state, capable of running up large legal fees in the litigation, and lacking the fiduciary obligation of public officials to act in the interest of the public. (For example, they made arguments on the merits that were contrary to settled public policy of the state of California.) Solicitor General Verrilli tried to avoid taking a position on standing, pointing out that the federal government had not taken a position in its brief, but when pushed to take a position opined that it was a “close question” but that “the better conclusion is that there’s not Article III standing.” However, some Justices seemed sympathetic to Cooper’s argument that finding no standing for initiative proponents would leave state officials who disliked a popular initiative with the power to veto it by refusing to defend it in the courts. This argument had impressed the 9th Circuit as well.
It was difficult to get a read on whether this will be the basis for the Court’s ruling. If the Court finds that Petitioners lacked standing to appeal the ruling, then the 9th Circuit’s decision would be vacated and the district court’s decision would be left as essentially an unappealed trial court decision, of no controlling precedential value but binding on the parties to the case. Arguably, that would mean that California would resume providing marriage licenses to same-sex couples, since District Judge Walker’s final order in the case would go into effect, but perhaps a county clerk who did not want to comply could initiate new litigation in a different federal court. Judge Walker’s order holds Proposition 8 unconstitutional and directs the named defendants, state officials, to treat it as a nullity. This would revive the California Supreme Court’s 2008 ruling in In re Marriage Cases, to the extent that its holding was impaired by Proposition 8.
The standing issue provides a fallback position for the Supreme Court in case it decides to avoid ruling on the merits, and from the questioning this morning, it seems that it may come in handy for that purpose, as it was hard to tell based on the statements by the Justices whether there could be a five-member majority to rule that same-sex couples are entitled to marry by virtue of the 14th Amendment’s Equal Protection Clause. It seemed, from comments that he made at various points during the argument, that Justice Anthony Kennedy, generally seen as the ‘swing voter’ on this Court, sometimes lining up with the other Republican appointees for conservative decisions, sometimes lining up with the Democratic appointees for more moderate opinions, is having the most difficult time making up his mind in this case.
Justice Kennedy mused at one point that perhaps the Court should not have granted the petition to review the case. His questions and comments certainly revealed a sympathy with the Respondents’ claim to the right to marry, particularly emphasizing the potential harms to the thousands of children being raised by same-sex couples in California whose parents are deprived of that right by Proposition 8. At the same time, he seemed bothered by the idea that a ruling on the merits striking down Proposition 8 would immediately put a stop to the unfolding political debate and impose same-sex marriage throughout the country. He picked up on Cooper’s point that same-sex marriage is a new phenomenon, that its long-term impact on society is as yet unknown, and that a California voter might rationally conclude that Proposition 8 should be passed to avoid potential harms and to allow the “experiment” of same-sex marriage to play out in other jurisdictions. This argument might pull him over to the conservatives who seem prepared to rule that there is no constitutional right for same-sex couples to marry, but his reluctance to adopt that extreme view, which would be inconsistent with the underlying rationale of his opinion for the Court in Lawrence v. Texas, could make a dismissal without an opinion on the merits his most desired escape hatch.
This would be a neat solution that would avoid creating a national precedent while restoring the right to marry in California. The Court could dismiss the writ of certiorari as “improvidently granted,” a device it has used in the past to avoid ruling on a contentious issue, and one outcome in this case that seems to have eluded many commentators (including this writer) who have enumerated the potential rulings in recent weeks.
There is a precedent for this in the context of gay rights. In 1980, the New York Court of Appeals ruled in People v. Onofre that the New York sodomy law was unconstitutional, invoking the due process clause of the 14th Amendment of the federal constitution, and the Supreme Court denied a petition by the local prosecutor to review the case. (New York’s attorney general had not defended the statute in the Court of Appeals and did not support the petition for review.) In 1983, the Court of Appeals ruled in People v. Uplinger that once the sodomy law had been invalidated, a statute penalizing soliciting for the purpose of engaging in sodomy would also be invalid, as a “companion statute to the consensual sodomy law” that suffered from the same constitutional flaws. The local prosecutor sought Supreme Court review, and this time the Court granted the petition and heard oral argument. It became clear at oral argument, however, that ruling on the merits would necessarily require a judgment on the constitutionality of sodomy laws as well, and the Court subsequently announced that it was dismissing the writ of certiorari as having been “improvidently granted.” (A few years later, however, the Court agreed to review a decision in which the 11th Circuit held that the Georgia sodomy law might violate the 14th Amendment, Bowers v. Hardwick, with unfortunate results.) That left the New York Court of Appeals ruling standing as if the writ of certiorari had originally been denied. Were the Supreme Court to follow this route in the Proposition 8 case, that would leave the 9th Circuit’s decision standing, and the Supreme Court would have avoided a ruling on the merits either way.
A dismissal of the writ would be the equivalent of a denial of review, which, according to the Court’s practice, should not be construed as either approving or disapproving the holding or reasoning of the lower court. Thus, the Court would not be expressing a view as to the correctness of the 9th Circuit’s rationale for striking down Proposition 8, and no national precedent would be set.
One of the important issues in the case is whether the Court, if ruling on the merits, should subject Proposition 8 to “heightened scrutiny,” under which the defenders of Proposition 8 would lose if they could not persuade the Court that the measure substantially advanced an important state interest. As to that, Justice Sonya Sotomayor asked Cooper, counsel for the Petitioners, “Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them? Is there any other rational decision-making that the Government could make? Denying them a job, not granting them benefits of some sort, any other decision?” Cooper’s response, a major concession, was, “Your Honor, I cannot. I do not have any — anything to offer you in that regard.” This might suggest that heightened scrutiny is the appropriate level of review, or it might just be construed as a concession that, apart from the marriage context, there is no rational basis for the government to discriminate against gay people.
Cooper’s rejoinder, however, was to argue that same-sex couples and different-sex couples are not “similarly situated” with respect to what he argues is one of the state’s important interests in marriage — providing a vehicle for responsible procreation and child-rearing — and thus that Justice Sotomayor’s question is not relevant to this case. Cooper quickly recovered from his “concession” and argued that sexual orientation should not be deemed a suspect classification as “the class itself is quite amorphous” and “defies consistent definition,” asserting that expert witnesses for the plaintiffs at trial were “quite vivid” on this point.
During Ted Olson’s argument on the merits, Justice Scalia signaled where he (and most likely Justices Alito and Thomas) would come down on the merits, by asking Olson when the exclusion of same-sex couples from marriage became unconstitutional? Was it unconstitutional in 1791 when the Bill of Rights was adopted? In 1868 when the 14th Amendment went into effect? Scalia’s general position is that constitutional provisions are limited to the meaning they had when they were adopted, and thus a claim for same-sex marriage cannot be valid today under the 14th Amendment if it would not have been deemed valid when the amendment was adopted. Olson countered with well-worn examples. When did public school segregation become unconstitutional? The Congress that approved the 14th Amendment and sent it to the states for ratification maintained a segregated school system in the District of Columbia, and the Supreme Court approved the doctrine of “separate but equal” in the 1890s. Unless Scalia is ready to repudiate Brown v. Board of Education (1954), his historicism is blatantly inconsistent, but that doesn’t give him pause. He hectored Olson for a few minutes on Olson’s inability to pinpoint the moment when same-sex marriage acquired the status of a constitutional right. Luckily, Scalia’s view on this does not command a majority on the Court, just the loyalty of Justices Thomas and, usually, Alito. Chief Justice John Roberts has not been a consistent follower of that view, and Justice Kennedy clearly repudiated it in Lawrence v. Texas. So the case won’t be decided on that basis.
None of the Justices seemed enamored with Solicitor General Verrilli’s argument that the Court should adopt the 9th Circuit’s rationale and hold that Proposition 8 was unconstitutional because California had already adopted family law policies that undercut all of the Petititoner’s arguments in its support. This is the so-called 8-state solution, under which states that have accorded same-sex couples the legal rights of marriage under the guise of civil unions or domestic partnerships would be held to lack a rational basis of withholding the status of marriage. Justice Stephen Breyer and Chief Justice Roberts shot holes through this argument, and all of the Justices who commented on it saw it as odd that states that had not accorded any rights to same-sex couples would be left alone while states who had granted such rights would be held to violate the constitution by not going “all the way.” Nobody seemed to favor this approach.
Chief Justice Roberts did not tip his hand on the merits during the questioning, and the Democratic appointees appeared from their questions and comments to understand and endorse the argument that excluding same-sex couples from marriage might be insupportable as a matter of Equal Protection, so as all commentators had suggested in predicting the outcome, it may come down to Justice Kennedy. What the commentators hadn’t anticipated was Kennedy’s suggestion that the Court should not have granted review, creating the possibility that the 9th Circuit’s decision would stand without being endorsed or rejected by the Court.
This would cabin the result to California in the short term, but would also leave unquestioned by the Supreme Court the 9th Circuit’s view that the arguments in support of Proposition 8 are not substantial enough to justify rescinding the right to marry. This, in turn, would set up the likelihood that the 9th Circuit might reverse the trial court decisions from Nevada and Hawaii, now pending on review, concerning the right of same-sex couples to marry in those states. In both of those cases, district judges granted judgment against the plaintiffs. Unleashed by a dismissal of the Prop 8 appeal, the 9th Circuit might reverse those rulings, quickly setting up a potential for two new Supreme Court cases in which the petitioners (the states of Nevada and Hawaii) would undoubtedly have standing. Thus, a dismissal of this appeal without a ruling on the merits might lead to one or two new same-sex marriage cases on the Court’s doorstep within another year or two.Tags: Donald Verrilli, Proposition 8, same-sex marriage; Hollingsworth v. Perry; Charles Cooper, Supreme Court of the United States, Theodore Olson