[First draft of history. This posting was written within the first few hours after the Supreme Court’s release of its decisions this morning in US v. Windsor and Hollingsworth v. Perry. I’ll certainly have second thoughts and third thoughts, etc…. but this is the first draft of history.]
In a pair of 5-4 rulings released on June 26, the United States Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the Bill of Rights, but that the Court did not have jurisdiction to decide whether California Proposition 8 violates the 14th Amendment, because the initiative proponents of that measure lack federal constitutional standing to appeal the trial court’s decision holding it unconstitutional. There is a 25-day period during which Petitioners can seek rehearing, after which the Court’s mandate in the Prop 8 case will go to the 9th Circuit, which then must issue an order dismissing the appeal and lifting the stay on Judge Vaughan Walker’s Order. At that point, later in July or early in August, at least theoretically, same-sex marriages will become available throughout California, although differences of opinion about the scope and effect of Walker’s Order may result in litigation delaying that outcome.
Justice Anthony M. Kennedy, Jr., wrote for the Court in United States v. Edie Windsor, the DOMA case, producing a somewhat typical Kennedy opinion that obscures the doctrinal basis of the ruling and will leave commentators and lower courts guessing as to its effect in subsequent cases. Kennedy’s opinion referred to liberty protected by the Due Process clause, federalism concerns in light of the traditional authority of the states to decide who can marry, and the equal protection requirements that the Court has found to be part of the 5th Amendment’s Due Process Clause. In some respects, his opinion evoked his 1996 opinion for the Court in Romer v. Evans, which rested on the idea that an enactment whose clear purpose and effect are to treat some people adversely, creating a sort of second-class citizenship, is facially unconstitutional without much need for further analysis. At oral argument, Justice Ruth Bader Ginsburg described state marriage without federal benefits as “skim milk marriage,” but Kennedy did not adopt that nomenclature, instead referring to 2nd class marriage.
As usual with Kennedy, his opinion avoids the technical terminology of constitutional analysis that many commentators customarily use in describing the process of judicial review, so the case will not be easy to classify in terms of such concepts as “strict scrutiny,” “heightened scrutiny,” “suspect classifications,” or “rational basis.” The Court thus avoided taking a position as between the trial court, which expressly employed the rational basis analysis to strike down Section 3, and the 2nd Circuit, which found “heightened scrutiny” should apply to sexual orientation discrimination cases and opined, in passing, that Section 3 would survive a less demanding rational basis review. This was probably at least a small disappointment for Windsor’s counsel, Roberta Kaplan of Paul Weiss LLP, and the LGBT Rights Project at the ACLU, who had hoped that a “heightened scrutiny” ruling by the Court could be used in other cases, especially pending cases challenging state bans on same-sex marriage in other parts of the country.
As usual when dissenting from a Kennedy gay rights opinion, Justice Antonin Scalia’s dissent expressed some relief that the Court had not used heightened scrutiny to strike down Section 3, but he then expressed puzzlement about the basis for the ruling. After summarizing and criticizing Kennedy’s analysis, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s non-specific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”
Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s decision and did not write separately.
President Barack Obama promptly issued a statement applauding the Court’s ruling and said he had directed Attorney General Eric Holder “to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.” This is especially good news for bi-national married same-sex couples, whose marriages should be recognized as equal to those of different-sex couples, and it will obviate any need for a “gay marriage” amendment to be part of the pending immigration reform legislation in Congress. Those few federal statutes that contain specialized marriage definitions for particular policy purposes should now be construed to treat lawful same-sex marriages the same as lawful different-sex marriages.
However, as Justice Scalia pointed out in his acerbic dissent, the Court’s opinion is obscure on one very important question: whether lawfully-married same-sex couples who live, work, or travel in states that don’t recognize same-sex marriages will still be recognized as married for federal purposes should the question arise when they are not in the state where they married (or another state that recognizes the marriage). Kennedy ended his opinion with a cryptic statement, “This opinion and its holding are confined to those lawful marriages,” which follows a passage criticizing DOMA because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” This relates to the federalism aspect of Kennedy’s decision, under which a state may, presumably, decide not to perform or recognize same-sex marriages unless, of course, Kennedy’s due process and equal protection concerns would override the state’s reservations in this regard.
There were actually three dissenting opinions, by Chief Justice John R. Roberts, Jr., Justice Scalia (joined by Justice Clarence Thomas, and, in part, by the Chief Justice), and Justice Samuel Alito (joined in part by Justice Thomas). The Chief Justice and Justice Scalia argued that the Court did not have jurisdiction to decide the DOMA case, because the Justice Department agreed with the rulings by the trial court and the 2nd Circuit Court of Appeals, so the parties before the Court were not “adverse” on the merits, lacking a true “case or controversy” as required by the Constitution. Roberts and Scalia both suggested that it was not appropriate for the government to ask the Supreme Court to affirm a lower court decision with which the government agrees.
The Chief Justice’s dissent stressed the “federalism” aspects of Kennedy’s opinion, which would possibly lessen its significance for pending challenges to state bans on same-sex marriage. Roberts emphasized that Kennedy’s opinion purported to take no position on the question whether same-sex couples have a right to marry under the 14th Amendment. He said that “the disclaimer is a logical and necessary consequence of the argument that the majority has chosen to adopt. The dominant theme of the majority opinion is that the Federal Government’s intrusion in an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells. I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.” As such, Roberts would argue, it has no relevance to disputes over the right to marry.
Justice Scalia also disagreed with Justice Kennedy on the merits of the case, but the Chief Justice did not join that part of his colorfully-worded opinion. Scalia discounted Kennedy’s disclaimer that the Court was not deciding whether same-sex couples have a constitutional right to marry, predicting that lower courts would rely upon his opinion to strike down state restrictions on same-sex marriage. In fact, Justice Scalia took the unusual step of demonstrating how a lower court could appropriate paragraphs from Kennedy’s opinion, change a few of the words, and produce a result requiring a state to let same-sex couples marry. Scalia’s dissents in gay rights cases are usually packed with colorful rhetoric, and this was no exception, but this is the first time he actually shows lower courts how to accomplish the terrible results that he forecasts will occur as a result of the Court’s opinion. (He did forecast, in his Lawrence dissent exactly ten years ago, that the ruling striking down sodomy laws would lead to same-sex marriage.)
Justice Alito, by contrast, argued in his dissent that the intervention of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) as defenders of DOMA took care of the “case or controversy” problem, suggesting that there is necessarily a role for the courts to play when both the plaintiff and the government agree that a statute is unconstitutional. He suggested that in such a case, Congress does have a legitimate interest in defending the statute, accepting the argument advanced by BLAG that the invalidation of a statute is a direct harm to Congress’s legislative authority. Alito disagreed with Kennedy on the merits of the constitutional claim, asserting that the question whether the federal government must recognize same-sex marriages was a political question not suitable for resolution by the Court. Alito said that the Constitution has nothing to say about same-sex marriage one way or the other. In his view, whether same-sex couples can marry should be left to individual states to decide through their political processes.
Chief Justice Roberts wrote for the Court in Hollingsworth v. Perry, the Prop 8 case. He found that the initiative proponents did not have standing to appeal District Judge Vaughan Walker’s ruling that Prop 8 violated the 14th Amendment, because the proponents had no personal tangible stake in the outcome. Justices Scalia, Ginsburg, Breyer and Kagan joined the Court’s opinion. Justice Kennedy wrote a dissent joined by Justices Thomas, Alito, and Sotomayor. Pundits will undoubtedly tie themselves in knots trying to figure out why three of the Democratic appointees joined Scalia and the Chief in the majority while Justice Sotomayor joined Kennedy and the Court’s two most conservative members, Alito and Thomas, in the dissent, especially since all four Democratic appointees joined Kennedy’s decision on the merits in the Windsor case. However, since neither Roberts nor Kennedy addressed the merits in their opinion, it is possible that the other justices did not see this as a particularly ideological case in the end — there is, really, no necessary liberal or conservative position on the question whether a state constitution can be construed to confer Title III standing on initiative proponents. Kennedy argues in dissent that it can.
Although the immediate results of both decisions are clear, their longer-term effects are not. The full meaning of a Supreme Court opinion cannot be determined on the day it is issued, but will depend on the responses of government officials, legislators, and lower courts, as well as private sector actors.
Section 3 of DOMA is gone, but that does not necessarily mean that all the barriers to full equality in federal rights are necessarily eliminated or will all disappear overnight. The President’s prompt statement suggests that by the time the Court issues its mandate in the Windsor case towards the end of July, there should be some guidance emanating from the Justice Department so that all federal agencies are on the same page concerning treatment of legally-married same-sex couples. It would be particularly helpful if this guidance addressed the issue of lawfully married couples who reside in states that don’t recognize same-sex marriages. The pending Respect for Marriage bill in Congress would mandate federal recognition for those marriages regardless of where the couple happens to live or be visiting, and the Administration had stated support for that legislation. It is unlikely that Congress, politically fractured at present, would take any action were the Administration to adopt this rule administratively.
Justice Kennedy pointed out in his opinion that studies have identified more than a thousand federal statutory or regulatory provisions for which marital status is relevant. Most of those provisions contain no express definition of marriage, while some include or refer to descriptive language relevant to the particular policy of the statute or regulation. Presumably, after the Windsor ruling goes into effect, any such provision that would not on its face include same-sex marriages would have to be interpreted consistently with the Court’s ruling to meet constitutional muster.
As noted above, the Court’s ruling on the Proposition 8 case is not a ruling on the merits that the California constitutional amendment is unconstitutional. Neither Roberts’ opinion for the Court nor Kennedy’s dissent takes any position on the merits of the equal protection theory adopted by the 9th Circuit or the equal protection and due process theories endorsed by Judge Walker in the trial court. Once Walker’s Order goes into effect after the 9th Circuit lifts its stay in response to the Supreme Court’s mandate to dismiss the appeal on jurisdictional grounds, battle may be enjoined around the state. The original defendants in the lawsuit, statewide officials and the county clerks in Alameda and Los Angeles Counties, all sued in their official capacities so that changes in those offices since the case was filed in 2009 would not make any difference, would clearly be bound by Judge Walker’s Order. Whether clerks in other counties would be bound, or would be subject to direction from state officials to comply, are questions yet to be settled. Governor Brown promptly announced his understanding that Judge Walker’s Order would have statewide effect, and a letter was sent to county clerks stating that they would have to comply when the stay is lifted. But the determined opponents of same-sex marriage signaled on June 26 that they will do everything they can to try to block its widespread implementation.