The Supreme Court announced on December 7 that it would review the 9th Circuit's Proposition 8 ruling and the 2nd Circuit's DOMA Section 3 ruling, but in both cases it indicated that it would hear argument about whether the petitioners had standing to seek review of the decisions. The arguments in both cases will probably take place late in March, with opinions expected by the end of the Court's term in June. The cases are Hollingsworth v. Perry, No. 12-144 (California Proposition 8) and United States v. Windsor, No. 12-307 (DOMA Section 3).
The Court made no announcement about the other pending certiorari petitions from DOMA rulings by the 1st Circuit or district courts in California and Connecticut, and also said nothing about a pending petition by Arizona seeking review of a preliminary injunction requiring that state to continue providing domestic partnership benefits while a lawsuit continues challenging the state's rescission of coverage for domestic partners of state workers.
In Perry v. Brown, the 9th Circuit ruled that Proposition 8, which placed a different-sex-only definition of marriage into the California Constitution, violates the constitutional equal protection rights of same-sex couples because there was no rational basis to rescind the right to marry that had previously been granted by the California Supreme Court. Same-sex couples were marrying in California from mid-June 2008 through election day of that year when Prop 8 was passed. Although Prop 8's passage was later held by the California Supreme Court to be valid, that court also ruled that the marriages that took place were valid and continued to be recognized, and that its underlying state equal protection ruling required that same-sex domestic partnerships in California be treated by the state as equal to marriage for all legal purposes.
The American Foundation for Equal Rights (AFER) retained noted Supreme Court advocates Ted Olson (a former U.S. Solicitor General) and David Boies to challenge Prop 8 on behalf of two same-sex couples who were denied marriage licenses. In the resulting lawsuit in San Francisco, District Judge Vaughan Walker ruled that same-sex couples have a right to marry under the equal protection and due process clauses of the 14th Amendment, and declared Prop 8 unconstitutional. Judge Walker allowed the Proponents of Prop 8 to intervene as defendants, after Governor Schwarzenegger indicated that the state would not defend Prop 8 in the lawsuit.
The Proponents appealed Judge Walker's ruling to the 9th Circuit, which stayed his order pending the outcome of the case. The 9th Circuit affirmed Walker, but on the narrower theory that no rational basis had been shown for the state to withdraw the right to marry after it had been granted. The 9th Circuit also held that Proponents had standing to appeal Judge Walker's ruling, after obtaining an advisory opinion from the California Supreme Court that initiative proponents have standing to defend their initiatives in the courts under California law.
The petition to the Supreme Court by the Proponents posed the broader question, on which the Supreme Court has now granted review, of whether same-sex couples are entitled by virtue of the 14th Amendment to the same right to marry enjoyed by different sex couples. But the Court has added back into the case the question whether the Proponents have standing to represent the state of California in defending Prop 8. If the Court rules that Proponents did not have standing to appeal Judge Walker's ruling as a matter of federal law, that would mean that neither the Supreme Court nor the 9th Circuit would have jurisdiction to decide their appeal. As such, Judge Walker's ruling, which was not appealed by any of the named defendants in the case, would be the final ruling, binding in the state of California, and same-sex couples would once again have a right to marry there.
If the Supreme Court finds that Proponents did have standing, it would proceed to consider the merits of the case. It could decide to answer the question on which it granted review – whether California can reserve the status of marriage to different-sex couples — or it could, if so inclined, accept the way the 9th Circuit reframed the case and decide that Prop 8 violated the 14th Amendment because no rational grounds exist to rescind the right to marry, especially in a state whose Supreme Court had ruled that same-sex domestic partners were entitled to all the rights of marriage.
In United States v. Windsor, the 2nd Circuit ruled that Section 3 of the Defense of Marriage Act, a federal statute passed in 1996, violates constitutional equal protection rights of married same-sex couples because the court found no important government interest was significantly advanced by treating them unequally to different-sex married couples.
Edith Windsor, the plaintiff represented by the ACLU, is suing for a refund of taxes paid on her inheritance of property from her wife, Thea Spyer, who passed away after they had married in Canada. Surviving spouses don't have to pay taxes in that situation, but the Internal Revenue Service relied on Section 3 of DOMA as authority to demand the taxes and deny the refund. In response to the complaint filed in this case, the Justice Department determined that Section 3 was unconstitutional and declined to defend it on the merits. Paul Clement, a former Solicitor General, was hired by the Republican leadership of the House of Representatives to intervene and defend Section 3, and he filed a petition in this case on behalf of the Bipartisan Legal Advisory Group of the House of Representatives, after losing the case in the 2nd Circuit. The Solicitor General also filed a petition, stating its agreement with the 2nd Circuit's decision but asking the Court to take the case so there would be a clear ruling on Section 3's constitutionality with nationwide application. The 2nd Circuit's ruling is only binding in the handful of states making up that federal judicial circuit.
In granting the Solicitor General's petition (not Mr. Clement's petition), the Court added two questions: First, in light of the Solicitor General's agreement with the 2nd Circuit's ruling, did the Solicitor General have standing to appeal the case to the Supreme Court, and, second, whether the Bipartisan Legal Advisory Group, represented by Mr. Clement, had standing to appeal the 2nd Circuit's ruling.
Thus, in both cases, the Court added questions to those posed by the petitioners, signaling the possibility that the Court could find that it does not have jurisdiction to rule on the merits in either of the cases. Under the Constitution, the Court is limited to deciding actual "cases and controversies," which it has construed to mean that only a party with a distinct personal stake in the outcome of a case has "standing" to bring their case to federal court. Plaintiffs have to have standing to initiate a lawsuit, and appellants have to have standing to appeal a trial court's ruling. If the petitioners in these two cases don't have standing, then the case is not a real "case or controversy" for constitutional purposes and is technically outside the Court's jurisdiction.
Thus, the Court's actions on these petitions raise all sorts of interesting questions that will probably keep scholars and commentators busy speculating from now until whenever the Court releases its decisions. If the Court finds that none of the petitioners have standing, it will dismiss these appeals. A ruling on the standing of the petitioners would also affect the jurisdiction of the courts of appeals. Presumably, a party that does not have standing to appeal to the Supreme Court also lacks standing to appeal a trial court's ruling. That would leave in place the district court ruling in Windsor's case, so she would be entitled to her tax refund. But a district court ruling is not a binding precedent. Only an appellate court can issue binding precedential rulings – and rulings by federal courts of appeals only bind the district courts in their circuit. If petitioners in the Windsor case lack standing, then the very same parties lacked standing in Gill, the 1st Circuit DOMA case, which would mean that the 1st Circuit lacked standing to hear that case, and Judge Tauro's ruling, once again, might only be binding on the particular parties in that case on their individual claims for federal benefits.
Ultimately, I can't believe that the Supreme Court will find that the Solicitor General lacks standing to bring these cases to the Court. The number of federal district courts that have been ruling against the constitutionality of Section 3 is steadily mounting, more lawsuits are in the pipeline, and a nationwide resolution of the constitutionality of this provision is needed. So I think the Court is likely to proceed to the merits on Windsor, and I think there is a good chance it will decide, by at least a vote of 5-4, that the lower courts are correct in holding it unconstitutional. The progress of the marriage equality movement may help to influence the Court in reaching this conclusion. As of January 1, same-sex marriage will be legal in nine states and the District of Columbia, and if Judge Walker's ruling eventually goes into effect, in California as well. As the portion of the country living in marriage equality states increases, the "anti-democratic" effect of a Supreme Court ruling on this issue decreases.