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Kennedy Retirement from Supreme Court May Doom LGBT Rights Agenda

Posted on: June 27th, 2018 by Art Leonard No Comments

Justice Anthony M. Kennedy’s announcement on June 27 that he would retire from active service on the U.S. Supreme Court as of July 31, 2018, opening up a vacancy for President Donald J. Trump to fill with the assistance of the bare majority of Republican United States Senators, portends a serious setback for LGBT rights in the years ahead. Kennedy cast a crucial vote and wrote powerfully emotional opinions to establish the dignity of LGBT people under the Constitution’s 5th and 14th Amendments.  Justice Kennedy will be remembered as the author of four major Supreme Court opinions that worked a revolution in United States constitutional law concerning the rights of sexual minorities.

Before his opinion for the Court in Romer v. Evans, 517 U.S. 620, was announced on May 20, 1996, the Court had never ruled in favor of gay litigants in an Equal Protection Case.   In Romer, the Court invalidated a Colorado constitutional amendment, adopted in a voter initiative that banned the state from protecting gay people from discrimination.  Kennedy condemned the measure as an attempt to render gay people as “strangers to the law,” and found it to be an obvious violation of equal protection, leading Justice Scalia to complain in dissent that the Court’s opinion was inconsistent with its ruling a decade earlier that sodomy laws were constitutional.

Before his opinion for the Court in Lawrence v. Texas, 539 U.S. 558, was announced on June 26, 2003, the Court had never used the Due Process Clause to strike down an anti-gay law. In Lawrence, Kennedy wrote for five members of the Court that the Texas Homosexual Conduct Law, by making private consensual adult gay sex a crime, had unconstitutionally abridged the liberty of gay people.  (Justice O’Connor concurred in an opinion focused solely on the equal protection clause.)  This time, Justice Scalia’s dissent denounced the Court’s opinion as opening the path to same-sex marriage.

His opinions in United States v. Windsor, 570 U.S. 744 (2013) and Obergefell v. Hodges, 135 S. Ct. 2584 (2015), established a right to marriage equality for LGBT people in the United States, the most populous nation so far to allow same-sex couples to marry. In Windsor, Kennedy wrote for five members of the Court that the Defense of Marriage Act, a statute requiring the federal government to refuse to recognize same-sex marriages that were valid under state law, violated both the Due Process and Equal Protection requirements of the 5th Amendment, emphasizing the affront to the dignity of gay married couples.  In dissent, of course, Justice Scalia accused the Court of providing a framework for lower courts to strike down state bans on same-sex marriage.  Scalia’s dissent was prophetic, as just two years later the Court ruled in Obergefell that the 14th Amendment’s guarantees of Due Process and Equal Protection required the states to allow same-sex couples to marry and to recognize such marriages for all legal purposes.  In the intervening years, lower courts had cited and quoted from Kennedy’s Windsor opinion (and Scalia’s dissent) in finding bans on same-sex marriage unconstitutional.  Kennedy’s vote with the majority in the per curiam ruling in Pavan v. Smith, 137 S. Ct. 2075 (2017), reinforced Obergefell’s holding that couples in same-sex marriages enjoyed the “full constellation” of rights associated with marriage, as did his vote in V.L. v. E.L., 136 S. Ct. 1017 (2016), affirming that states were obligated to extend full faith and credit to second-parent adoptions granted by the courts of other states.

Justice Kennedy also joined the majority in a concurring opinion in Christian Legal Society v. Martinez, 561 U.S. 661 (2010), rejecting a 1st Amendment challenge to a public university law school’s refusal to extend official recognition to a student group that overtly discriminated against gay students.

When LGBT litigants lost Kennedy’s vote, however, they lost the Court. In his most recent LGBT-related decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 2018 WL 2465172, 2018 U.S. LEXIS 3386 (June 4, 2018), while reiterating his concern for the dignity of gay people to be able to participate without discrimination in the public marketplace, Kennedy could not bring himself to reject the religious free exercise claims of a Christian baker, and so engineered an “off ramp” by embracing a dubious argument that the Colorado Civil Rights Commission was so overtly hostile to the baker’s religious beliefs that he had been deprived of a “neutral forum” to decide his case.  Thus, Kennedy was able to assemble a 7-2 vote to overturn the Colorado Court of Appeals ruling in that case, without directly ruling on whether the baker’s religious objections would override the non-discrimination requirements of Colorado law, leading to oversimplified media headlines suggesting that the baker had a 1st Amendment right to refuse to make the cake.

Kennedy also joined the majority (without writing) in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), a 5-4 ruling holding that the Boy Scouts had a 1st Amendment right to deny membership to an out gay Assistant Scoutmaster, based on BSA’s rights of free speech and expressive association. He was part of the unanimous Courts that rejected a constitutional challenge to the Solomon Amendment, a law denying federal money to schools that barred military recruiters (mainly because of the Defense Department’s anti-gay personnel policies), in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006), and that, reversing the Massachusetts Supreme Judicial Court, held that a gay Irish-American group could be barred from marching in Boston’s St. Patrick’s Day Parade in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995).  However, in those cases all of the more liberal members of the Court joined in the unanimous opinions, so Kennedy’s vote did not make a difference to the outcome.

While Justice Kennedy’s majority opinions in the major LGBT rights cases were triumphs for LGBT rights, they were not viewed as unalloyed triumphs in the halls of legal academe. Commentators who agreed with the results were frequently harshly critical of Kennedy’s opinions in terms of their articulation of legal reasoning and doctrinal development.  The Romer decision left many scratching their heads, trying to figure out whether the Court had applied some sort of “heightened scrutiny” to the Colorado constitutional amendment, puzzled about the precedential meaning of the ruling for later LGBT-related equal protection challenges.  There was similar criticism of the opinions in Lawrence, Windsor, and Obergefell.  Kennedy failed to use the doctrinal terminology familiar to constitutional law scholars and students, such as “suspect classification,” “heightened scrutiny,” “compelling state interest” and the like, leaving doubt about the potential application of these rulings.  Indeed, three justices dissenting in Pavan v Smith in an opinion by Justice Gorsuch claimed that the Court’s Obergefell ruling had left undecided the question in Pavan – whether Arkansas had to list lesbian co-parents on birth certificates – and the Texas Supreme Court expressed similar doubts about the extent of Windsor and Obergefell in refusing to put an end to a dispute about whether the city of Houston had to extend employee benefits eligibility to the same-sex spouses of city employees.  While some courts, such as the 9th Circuit Court of Appeals, saw Kennedy’s opinions as extending protected class status to gay people for equal protection purposes, others insisted that those rulings had produced no such precedent.

Justice Kennedy’s retirement effective July 31, 2018, seemed to signal a likely retreat from LGBT rights leadership by the Supreme Court. Assuming that President Trump will nominate and the Republican majority in the Senate will confirm a justice with the ideological and doctrinal profiles of Neil Gorsuch or Samuel Alito, the crucial fifth vote to make a pro-LGBT majority would most likely be missing, although Supreme Court appointments are a tricky business.  In the past, some presidents have been astounded at the subsequent voting records of their appointees.  President Dwight Eisenhower called his appointment of William J. Brennan one of the worst mistakes of his presidency, as Brennan went on to be a leader of the Court’s left wing.  Had he lived long enough to see it, President John F. Kennedy might have been similarly disappointed by the rightward drift of Byron R. White, his nominee who wrote the blatantly homophobic decision in Bowers v. Hardwick, 478 U.S. 186 (1986), that upheld Georgia’s felony sodomy law, calling a claim to constitutional protection by gay people “at best facetious.”  President Richard Nixon was undoubtedly disappointed with the leftward drift of Harry Blackmun, author of Roe v. Wade, 410 U.S. 113 (1973), the Court’s key abortion rights decision, and vigorous dissenter in Bowers v. Hardwick.  President Ronald Reagan appointed Anthony Kennedy assuming he would provide a vote to strike down abortion rights, but Kennedy was part of a moderate Republican coalition (joining with Justices Sandra Day O’Connor and David Souter) that joined with the remaining Democratic appointees to reaffirm those rights in Planned Parenthood v. Casey, 505 U.S. 833 (1992).  President George H. W. Bush’s appointment of Souter ended up being a massive disappointment to conservatives, as Souter frequently voted with the Democratic appointees and the leftward veering John Paul Stevens, who had been appointed by President Gerald Ford and ended up being much more liberal than expected.  Souter was so disillusioned by the Court’s 5-4 decision in Bush v. Gore, 531 U.S. 98 (2000), handing the presidency to George W. Bush after Albert Gore decisively won the national popular vote and may well have been entitled to the Florida electoral votes needed to put him over the top, that he retired from the Court prematurely.

In other words, the past records of Supreme Court nominees are not inevitably accurately predictive prologues to how they will vote on the Court over the long term. Supreme Court justices frequently serve for several decades (Kennedy’s service stretched over 30 years), and the looming constitutional issues at the time of their appointment are inevitably replaced by new, unanticipated issues over the course of their service.  Also, the Supreme Court is like no other court in the United States, in which the constraints of precedent faced by lower court judges are significantly loosened, since the Supreme Court can reverse its prior holdings, and in which theories and trends in constitutional and statutory interpretation evolve over time.  The examples of Brennan, Souter and Kennedy have caused the confirmation process to change drastically, and the possibility of an appointee turning out a total surprise appears diminished, but it is not entirely gone.  One can hope that a Trump appointee will not be totally predictable in the Alito/Gorsuch orbit, although that may be unduly optimistic when it comes to LGBT issues.  In his first full term on the Court, Justice Gorsuch has not cast 100 predictable votes. . .

Federal Court Orders Stay of New Family & Medical Leave Act Regulation

Posted on: March 27th, 2015 by Art Leonard No Comments

U.S. District Judge Reed O’Connor, sitting in the U.S. District Court for the Northern District of Texas in Wichita Falls, issued an order on March 26 requiring the U.S. Department of Labor to stay the implementation of a new regulation that changes the definition of “spouse” under the federal Family and Medical Leave Act to include same-sex couple, wherever they reside, who were married in a jurisdiction that allows same-sex marriages. State of Texas v. United States of America, 2015 U.S. Dist. LEXIS 38264. Judge O’Connor’s order was part of a preliminary injunction awarded to the states of Texas, Arkansas, Louisiana and Nebraska, who joined together as co-plaintiffs in a case originally filed by Texas Attorney General Ken Paxton.

It was unclear from the court’s order whether the regulation was stayed in all of its applications, or just as applied to the state government acting as employers. It was also unclear whether it would apply just to the four co-plaintiff states, or to all states that do not presently recognize same-sex marriages.

The Family and Medical Leave Act, enacted during the Clinton Administration in 1993, requires employers with 50 or more employees to make unpaid leave available for certain purposes to full-time employees after they have completed a year of service. The FMLA also applies to state governments acting as employers.

Family leave could include time off to take care of a spouse or child with health problems. The statute defined “spouse” as “a husband or wife, as the case may be.” Regulations proposed by the Labor Department in 1993 provided that “spouse” means “a husband or wife as defined or recognized under state law for purposes of marriage in states where it is recognized.” In 1995, the Department published a “final rule” making clear that the law of the state where an employee resides would control for purposes of determining spousal status.

After the Supreme Court struck down Section 3 of the Defense of Marriage Act in 2013, the federal government came under the constitutional obligation to recognize legally-married same-sex couples. However, many states withhold such recognition, and the existing FMLA regulation would thus withhold the federal benefit entitlement from married same-sex couples living in states that did not recognize their marriages.

The Labor Department proposed to solve this problem by issuing a new regulation, changing the definition of “spouse” to include all legally-married same-sex couples, regardless where they live. The proposed regulation was published in the Federal Register, comments were received and studied, and a final rule was published in the Federal Register, to go into effect on March 27.

Texas Attorney General Paxton’s lawsuit claimed that the Labor Department could not change the definition of spouse for state government employers. For one thing, he argued, Section 2 of the Defense of Marriage Act, which the Supreme Court did not address in its DOMA decision, specifically provides that states are not required to recognize same-sex marriages performed in other states. For another, he argued, the Supreme Court’s ruling acknowledged that states are entitled to decide who can marry and whose marriages will be recognized within their borders. According to this reading of the case, U.S. v. Windsor, Section 3 of DOMA was unconstitutional because Congress does not have authority to withhold recognition for federal purposes of marriages that states allow and recognize. This is the view, argued by Chief Justice John Roberts in his concurring opinion, that Windsor is essentially a “federalism” case. It’s a view that Justice Anthony Kennedy specifically disclaimed in his opinion for the Court, however, and the question of how to characterize that decision is a topic of lively debate among legal scholars and lower court judges.

Paxton argued that the Labor Department can’t order Texas through a regulation to recognize marriages contrary to the Texas Constitution and statutes, especially when that regulation conflicts with Texas’s right, under Section 2 of DOMA, to refuse to recognize the marriages.

Although there is a respectable body of scholarly opinion that Section 2 of DOMA is unconstitutional, and many federal courts, including four circuit courts of appeals, have ruled that states are required to recognize legally contracted same-sex marriages, the Supreme Court will not speak on the merits of these issues until it rules in Obergefell v. Hodges, most likely in June after the April 28 oral argument in Washington.

Until then, Judge O’Connor pointed out, the district court is bound by existing precedents in the 5th Circuit. Although a panel of the 5th Circuit heard arguments in several marriage equality appeals early in January, it has yet to issue a decision. Since prior 5th Circuit precedents mandate that trial judges in the circuit use the most deferential standard of judicial review when considering laws that discriminate because of sexual orientation, and Section 2 of DOMA is still in effect, Judge O’Connor concluded that a state government employer cannot be compelled by a federal regulation to recognize same-sex marriages performed in other states.

This is only a preliminary injunction, and Judge O’Connor cautioned that upon a full consideration of the merits there might a different conclusion, especially if that takes place after either the 5th Circuit or the Supreme Court rules on pending marriage equality cases. So this stay may turn out to be a temporary road-bump on the path to equal treatment for married same-sex couples living in states that don’t recognize their marriages.

Although Judge O’Connor’s legal analysis concluded that the Labor Department could not by regulation order states to recognize same-sex marriages, his stay was phrased in more general terms: “The Department of Labor must stay the application of the Final Rule, pending a full determination of this matter on the merits.” This might just mean that for now the rule does not apply to government workplaces in Texas and the other plaintiff states, but can go into effect for other workplaces. That’s what it should mean to be consistent with the court’s reasoning. The test will come when a private sector employee in Texas requests FMLA leave to care for a same-sex spouse, is turned down, and seeks vindication in the courts. But the entire problem may disappear when the Supreme Court rules in June.

Same-Sex Marriages in Utah – “On Hold”?

Posted on: January 9th, 2014 by Art Leonard No Comments

On December 20, 2013, US District Judge Shelby ruled in Kitchen v. Herbert that Utah’s constitutional amendment and statutes banning the performance or recognition of same-sex marriages violated the 14th Amendment. He was ruling on cross-motions for summary judgment. Since the state’s motion did not ask him to grant a stay in case his ruling went against them, he didn’t stay his ruling, which culminated in an injunction barring enforcement of the same-sex marriage ban. Immediately upon announcement of his ruling, same-sex couples started showing up at county clerk offices seeking – and, in many counties, getting – marriage licenses, and since then over 1300 same-sex marriages have been performed in Utah.

The attorney general’s office contacted Judge Shelby after the opinion was issued asking for a stay, and was told that they had to file a motion to that effect and give the other side an opportunity to respond. The motion was filed, responded to, and denied by Judge Shelby on December 23. On December 24, a two-judge motion panel of the 10th Circuit also denied a stay, but ordered that review of the district court’s opinion be expedited. A briefing schedule requires all briefing to be concluded by the end of February, and an argument will probably take place shortly thereafter. If the 10th Circuit really wants to expedite things — and take some excessive heat off of a three-judge panel — they should consider hearing the case en banc (by the entire 10-judge bench) right off the mark, since anything a three-judge panel decides might draw a petition for rehearing en banc anyway.

The state didn’t file its application for a stay with the Supreme Court until December 31, by which time perhaps as many as a thousand same-sex marriages had been performed. That Court granted a stay of the district court’s injunction, pending a ruling by the 10th Circuit, on January 6. So, effective upon issuance of the Supreme Court’s order, new same-sex marriages cannot be contracted in Utah while the stay is in effect.

The Utah Attorney General, Sean Reyes, announced, after some study, that the question of the legal status of the same-sex marriages performed from December 20 to January 6 is unprecedented and uncertain. The Governor’s Office issued an advisory notice on January 8 to state agencies asserting that the marriages are “on hold” and will not be recognized by the state while the stay is in effect. Governor Herbert’s position is that while the stay is in effect, the constitutional amendment and laws declared unconstitutional by Judge Shelby remain in effect and binding on the state. Since those laws ban recognition of same-sex marriages, the governor says, the state of Utah may not recognize these marriages. He temporized, however, stating that actions taken by the married couples prior to the stay would not be reversed. At least, he gave an example of a change of name on a driver’s license. If this was obtained before the stay, the state would not contest it — for now. He did not clarify, however, the interesting question whether same-sex spouses of state employees who signed up for spousal benefits before the stay would remain entitled to those benefits. His announcement does clearly imply that any applications to the state for anything requiring a valid marriage that was not filed prior to January 6 won’t be honored by the state.

My question is this: The Supreme Court stayed the district court’s injunction, but that’s all it stayed. It could not stay the 14th Amendment. That remains in effect in Utah. And that applies to these 1300-plus marriages. The announcement from the Governor’s Office said that its non-recognition position “is not intended to comment on the legal status of those same-sex marriages — that is for the courts to decide.” And there are more courts that have jurisdiction to decide that question than just the 10th Circuit in the pending appeal. So, does the state’s refusal to recognize the same-sex marriages violate the 14th Amendment rights of those couples?

What if, for example, one spouse in a same-sex marriage performed in Utah on December 20 suddenly dies? The governor would say that the question whether their surviving spouse is recognized as such under Utah law must be in held in abeyance — until, apparently, the final resolution of Kitchen v. Herbert, which might not be until 2015 or even later. In a similar situation, however, a federal court in Ohio ordered the state to recognize a surviving spouse from an out-of-state same-sex marriage, even though Ohio has a constitutional amendment and statutes similar to those of Utah. The district court in Ohio identified a constitutional “right to remain married” that outweighed whatever interest the state was asserting in refusing to recognize the marriage. And the court pointed to such realities as restrictions on burials in family plots and access to death benefits that would pose substantial harm to a surviving spouse whose marriage is not recognized. Utah recognizes other out-of-state marriages for such purposes. What valid policy reason would it have for refusing to recognize these marriages that took place pursuant to valid Utah marriage licenses? Do these 1300-plus Utah couples now have a constitutional “right to remain married” and would a state or federal court enforce that right by ordering the state to recognize a surviving spouse?

One can spin out numerous such hypotheticals. The longer the stay is in effect, the longer the normal vicissitudes of life will present situations where these couples whose marriages are considered by the state to be “on hold” will need to have decisions made. Litigation seems likely.

An emerging trend in the lower federal courts is to construe U.S. v. Windsor broadly as supporting the constitutional arguments of marriage equality advocates. (Justice Scalia construed it that way in his dissent, as Judge Shelby was quick to point out.) While the Utah case is pending before the 10th Circuit, we can expect to get more district court summary judgment rulings in the numerous pending marriage equality cases. Motions for summary judgment are already on file or soon to be filed in cases pending in other federal districts, as well as in many state courts. Virginia, West Virginia, North Carolina, Texas, Arkansas, Pennsylvania. . . The list goes on. More district court opinions are going to be issued in the months ahead, and the 9th Circuit may be ruling during 2014 on the appeal now pending from an adverse marriage equality ruling by the district court in Nevada, a ruling that predates Windsor and whose reliance on Baker v. Nelson as authority for rejecting the constitutional challenge appears risible in light of Windsor. Marriage equality plaintiffs may lose some of these motions, but it is likely that they will win some, and public opinion will advance as more opinions issue. These cases are pending in states where the local and state officials are inclined to defend their same-sex marriage bans, and by now they may be waking up to the need to ask for stays when litigating summary judgment motions, so we may not have a repeat of what happened in Utah (and, last year, in New Jersey) in terms of a district court order actually going into effect while an appeal is pending. Surely one thing the Supreme Court’s Order has done is to signal lower courts that marriage equality rulings are to be stayed pending appeal.

If marriage equality advocates win a circuit court of appeals ruling or a state supreme court ruling premised on the federal constitution, the Supreme Court would pretty definitely grant review, although it could abstain if it wanted to do so. But I would predict that the Supreme Court would be deluged by amicus briefs from state attorneys general and governors urging it to grant review, and perhaps the Solicitor General would join in, since the S.G. ended up coming in on the side of the marriage equality advocates in the California Proposition 8 case when it got to the Supreme Court and could logically argue that it would be in the interest of the nation to have a definitive ruling on marriage equality.

Most lower courts and legal scholars now seem to feel that the Windsor case lays a firm groundwork for the Supreme Court to rule for marriage equality, although there is some dissent from that view, mainly focused on the federalism comments in Justice Kennedy’s opinion and the particular wording of the operative portion of the opinion. Justice Kennedy spoke in terms of the right of married couples to “equal dignity” from the federal government, but he referred to a dignity “conferred upon” those couples by the states that allow them to marry, and I’ve heard the argument that this signals a right of states to decide who can marry. I don’t think that the grant of a stay need affect the analysis of the ultimate question on the merits, although some might construe it as signaling disagreement by a majority of the Court with Judge Shelby’s decision. I think that would be an unduly pessimistic reading. Issuing a stay in a case like this seems like the natural thing to do. The 9th Circuit did it in the Prop 8 case, and the 2nd and 1st Circuits did it in the DOMA cases. I speculate that the Supreme Court majority (perhaps even all of them) was sympathetic to the state’s argument that implementation of a major social change should not take place on the basis of a single-judge district court decision awaiting review on a question that the Supreme Court has not yet decided, and this would justify a stay, at least until the 10th Circuit rules, regardless of whether the Supreme Court was likely to reverse upon further appeal.

As to how the Supreme Court would ultimately rule, I remain unsure. I had found Justice Scalia’s dissent persuasive on this point, if a bit overblown in his usual dissenting style, but I’ve heard at least moderately persuasive arguments to the contrary: that although Justice Kennedy disavowed deciding the case on federalism grounds, his analysis incorporates a heavy dose of federalism in any event, and there is plenty of language in his opinion to quote in support of the idea that defining marriage is a state prerogative in the first instance. But he was also careful to note that states must act within constitutional bounds, as the Supreme Court has ruled several times in striking down state marriage restrictions. So I remain uncertain how Kitchen v. Herbert may ultimately be decided by the Court, under the likely name of Herbert v. Kitchen.

As to what may happen in the 10th Circuit, I was cheered to read a comment in the Salt Lake Tribune that Prof. Lynn Wardle of Brigham Young University Law School, an ardent opponent of same-sex marriage whose name appears on briefs in this case, seems resigned to losing in the 10th Circuit. The circuit is “evenly balanced” at present in terms of the political affiliations of the presidents who appointed the judges — 5 by Democrats and 5 by Republicans – but that doesn’t necessarily tell us how this will come out on the merits. (A tie vote, by the way, would affirm the district court by default.) The two-judge panel that denied the stay had one Republican appointee and one Democratic appointee. The 2nd and 1st Circuit DOMA panels did not fall along political lines, either. The district judge in Massachusetts who ruled against DOMA was a Republican appointee, as was the Circuit judge who wrote the opinion affirming him, as was Justice Kennedy who wrote for the Court in Windsor. So we just have to wait and see on the merits.

But for now, I think it would be interesting to see what a Utah or federal court might say about the refusal of the state to recognize lawfully-contracted same-sex marriages while the stay is in effect, and I would anticipate that some lawsuits may be filed relatively quickly.

Supreme Court Strikes Section 3 of DOMA, Dismisses Proposition 8 Appeal

Posted on: June 28th, 2013 by Art Leonard 1 Comment

[Second draft of history.  My prior posting on this week’s ruling in the DOMA and Prop 8 cases was written shortly after the opinion was release, and was intended as a basis for my journalistic comment to be published in Gay City News that day.  Herewith my more extensive draft, reflecting further thought and containing many more quotes from the Court’s opinion, written two days later.  And amended after a few hours to reflect some startling new developments today.]

On June 26, the last decision day of its October 2012 Term, the United States Supreme Court issued a pair of 5-4 rulings, holding unconstitutional Section 3 of the Defense of Marriage Act (DOMA) and thus requiring the federal government to treat lawfully-contracted same-sex marriages as equal to different-sex marriages for purposes of federal law, and rejecting an appeal by initiative proponents of a federal trial court decision invalidating California Proposition 8 of 2008, setting the stage for the resumption of same-sex marriages in that state.  United States v. Windsor, 2013 WL 3196928; Hollingsworth v. Perry, 2013 WL 3196927. 

Justice Anthony M. Kennedy, Jr., writing for the Court in Windsor, found that Section 3 of DOMA, which required the federal government to deny legal recognition to same-sex marriages validly contracted by the law of the jurisdiction where they took place, violates the 5th Amendment’s guarantee of due process and equal protection.  Chief Justice John R. Roberts, Jr., writing for the Court in Hollingsworth, found that the initiative proponents lacked standing to appeal the trial court’s decision, leaving both the Supreme Court and the 9th Circuit without jurisdiction to rule on the merits of the case.  The Court vacated the 9th Circuit’s decision (which had affirmed the trial court’s broad due process and equality ruling on a narrower equal protection theory), and ordered that the appeal be dismissed, which would logically result in terminating the 9th Circuit’s stay of the trial court’s Order, which had enjoined state officials from enforcing the constitutional amendment enacted by Prop 8. At the request of California Attorney General Kamala Harris, the 9th Circuit panel dissolved the stay on Friday, and the plaintiff couples promptly got married; in San Francisco, Attorney General Harris officiated for the wedding of Kris Perry and Sandy Stier at City Hall; in Los Angeles, outgoing Mayor Antonio R. Villaraigosa officiated at the wedding of Paul Katami and Jeffrey Zarrillo. 

The line-up of justices in Windsor was predictable, with Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, all appointees of Democratic presidents and sometimes referred to as the Court’s “liberal wing,” signing Kennedy’s opinion.  There were three dissenting opinions.  Chief Justice Roberts, writing for himself; Justice Antonin Scalia, writing for himself and Justice Clarence Thomas, with partial joinder by the Chief; and Justice Samuel Alito, writing for himself with partial joinder by Justice Thomas.  Roberts, Scalia and Thomas agreed on the proposition that the case was not properly before the Court, because the Petitioner, the United States, did not disagree with the substance of the 2nd Circuit’s opinion holding Section 3 unconstitutional.  Thus, in their view, the case did not present the Court with a real “controversy” to resolve between the government and Plaintiff-Respondent Edith Schlain (“Edie”) Windsor, as the government was not asking the Court to do other than affirm the decision below.  Evidently none of these three justices considered that the presence in the case of the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which was allowed to intervene to defend Section 3, would cure this jurisdictional fault.  Justice Alito, by contrast, opined that BLAG’s participation as an interested party cured the jurisdictional defect, arguing that BLAG as representative of the House of Representatives (pursuant to a resolution adopted by the House in January 2013, a month after the Court granted the petition for certiorari in this case), had a real interest in the resolution of the case, since the lower court’s opinion had invalidated legislation enacted by the House, thus in effect constricting its authority to pass legislation.  Although Roberts, Scalia and Thomas believed the case was not properly before the Court, this did not stop them from pronouncing on the merits, all agreeing that Section 3 was constitutional.  Justice Alito also opined that Section 3 was constitutional, but on somewhat different grounds.  The Chief Justice signed on to the portion of Scalia’s dissent addressing jurisdiction, and Thomas, who signed on to Scalia’s entire dissent, also signed on to the portion of Alito’s dissent addressing the merits. 

The line-up of justices in Hollingsworth was less predictable, and initially puzzling to many.  The Chief Justice’s opinion was joined by Justices Scalia, Ginsburg, Breyer and Kagan, while Justice Kennedy’s dissent was joined by Justices Thomas, Alito and Sotomayor.  Roberts’ opinion for the Court insisted that in order to have Article III standing, an appellant must show that the lower court’s ruling imposes a personal and tangible harm on him, rejecting the alternative argument that the initiative proponents were suing in a representative capacity on behalf of the state of California.  There were no concurring opinions.  Justice Kennedy argued in dissent that the California Supreme Court’s decision, entitled to binding effect as an authoritative construction of California law, provided a basis for finding that the initiative proponents had standing to sue on behalf of the state as crucial to the “integrity” of the state’s initiative process.  Neither Roberts nor Kennedy said anything in their opinions about the merits of the case.  Indeed, the only member of the Court to give even an oblique discussion to the Prop 8 merits was Justice Alito, in his dissent in Windsor, in which he devoted a lengthy textual footnote to ridiculing the fact finding process of the district court in Hollingsworth.

The DOMA Decision

Justice Kennedy’s decision first took on the jurisdictional issue, acknowledging the unusual posture of the case, in which the Petitioner (the United States represented by the Solicitor General) was asking the Court to affirm the decision below.  This led the court to appoint as amicus curiae Prof. Vicki Jackson of Harvard Law School to argue against jurisdiction, since none of the “parties” would make such an argument.  Ultimately, Kennedy concluded that the United States had standing to appeal the 2nd Circuit’s decision because of the government’s commitment to continue enforcing Section 3 unless and until there was a definitive ruling by the federal courts as to its constitutionality. 

The case began when the Internal Revenue Service, relying on Section 3, refused to allow Edith Windsor to use the marital exemption to avoid paying taxes on her inheritance from her wife, Thea Spyer, who died in 2009 in New York City after New York State courts had begun to recognize same-sex marriages contracted elsewhere.  (Windsor and Spyer married in Canada after having been a couple for over forty years.  New York subsequently adopted marriage equality legislatively in 2011.)  Because of the Obama Administration’s determination that it should continue enforcing Section 3, despite the conclusion by Attorney General Eric Holder and President Barack Obama that the provision was unconstitutional, the government would not comply with the lower courts’ orders to refund Windsor’s $363,000 tax payment on her inheritance.  Thus, something tangible with respect to the parties turns on the Court’s decision in this case; either Windsor gets her refund or she doesn’t.  This was enough, in Kennedy’s view, to satisfy Article III’s standing requirement for the government. For Scalia, it was a “contrivance” intended to manufacture an opportunity for the Court to rule on the constitutionality of Section 3.

Further, Kennedy found, the government had a very legitimate and direct interest in getting a definitive national precedent on Section 3, in light of the 1st Circuit’s previous ruling finding it unconstitutional.  Beyond meeting the requirements of Article III, the case would also have to meet the Court’s jurisprudence on when it might be “prudential” for the Court to abstain from deciding a case.  In the absence of a ruling on Section 3, he pointed out, “The district courts in 94 districts throughout the Nation would be without precedential guidance not only in tax refund suits but also in cases involving the whole of DOMA’s sweep involving over 1,000 federal statutes and a myriad of federal regulations. . .  Rights and privileges of hundreds of thousands of persons would be adversely affected, pending a case in which all prudential concerns about justiciability are absent.  That numerical prediction may not be certain, but it is certain that the cost in judicial resources and expense of litigation for all persons adversely affected would be immense.”  It was clear that Justice Kennedy was persuaded by the practical problem faced by married same-sex couples and the government, were a ruling on the constitutionality of Section 3 to be further delayed.  “In these unusual and urgent circumstances,” he wrote, “the very term ‘prudential’ counsels that it is a proper exercise of the Court’s responsibility to take jurisdiction.”

Scalia decisively rejected these holdings, claiming that one could scour the U.S. Reports and never find a case in which the Court had asserted jurisdiction at the behest of a Petitioner who was asking the Court merely to affirm the holding of the court of appeals.  He observed that “the plaintiff and the Government agree entirely on what should happen in this lawsuit.  They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well.  What, then are we doing here?”  He characterized as “jaw-dropping” Kennedy’s assertion that the role of the Court was to say “what the law is” in the sense that the famous quotation of Chief Justice John Marshall used by Kennedy was presented in the majority opinion.  Scalia asserted that the Supreme Court operates to decide actual cases, incidentally deciding questions of law as required to determine the rights of the parties in a particular case, and that the Court does not have a general jurisdiction to decide “what the law is” in the absence of an actual controversy between the parties.  He chided Kennedy (an internationalist with a penchant for citing foreign precedents, to Scalia’s continued dismay) for mistaking the function of American courts for those of some other countries, citing as an example a treatise on the German constitutional court.

Kennedy’s approach to the merits of the case strikingly resembled his approach to the two earlier major gay rights opinions he wrote: Romer v. Evans (1996) and Lawrence v. Texas (2003).  In both of those cases, Kennedy eschewed the terminology that legal commentators, some justices, and many lower court judges have adopted to describe the process of judicial review, such as “strict scrutiny,” “heightened scrutiny,” “rational basis” and “suspect classification.”  He was true to form here, writing a decision that never employs this terminology and thus leaves it open to commentators and later courts to try to determine its doctrinal significance. 

Kennedy began his discussion of the merits with an extensive exposition of the traditional role of the states in deciding who could marry, and the traditional deference to state decisions on marriage by the federal government, as part of the allocation of roles in our federal system.  For several pages of his opinion, it appeared that he was ruling that Section 3 violates the allocation of authority between federal and state governments by overriding the determination of particular states that same-sex couples should be entitled to the same “status” and “dignity” as different-sex couples have in their marriages.  “DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next.  Despite these considerations,” he continues, “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”  But, Kennedy says, quoting his opinion in Romer, “discriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.”  In other words, Kennedy will not rest his decision on federalism, but will refer to Congress’s unusual “intrusion” into a traditional state function to justify a more demanding level of judicial review than might otherwise be applied in this case as part of his 5th Amendment analysis.

“The States’ interest in defining and regulating the marital relation, subject to constitutional guarantees, stems from the understanding that marriage is more than a routine classification for purposes of certain statutory benefits,” he explained.  “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State, and it can form ‘but one element in a personal bond that is more enduring,’” quoting his own opinion in Lawrence.  “By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.”  But, he points out, “DOMA seeks to injure the very class New York seeks to protect.  By doing so it violates basic due process and equal protection principles applicable to the Federal Government.”  Thus, Kennedy cited as the constitutional basis for the ruling both aspects of the Due Process Clause of the 5th Amendment, the substantive due process and the equal protection guarantees that prior Supreme Court decisions have found to inhere in that provision.  “DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages.  This is strong evidence of a law having the purpose and effect of disapproval of that class.  The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Thus, for Kennedy, this case was very closely analogous to Romer, where he found that Colorado voters enacted Amendment 2 to make gay people unequal to everybody else, without any plausible legitimate justification.  In this case, after reviewing the blatantly homophobic legislative history of DOMA’s enactment in 1996, he found a similar fatal flaw.  “DOMA writes inequality into the entire United States Code,” he exclaims.  “DOMA’s principal effect is to identify a subset of state-sanctioned marriages and make them unequal.  The principal purpose is to impose inequality, not for other reasons like government efficiency.  Responsibilities, as well as rights, enhance the dignity and integrity of the person.  And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.  By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.  By this dynamic DOMA undermines both the public and private significance of state-sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage.  The differentiation demeans the couple, whose moral and sexual choices the Constitution protects (citing Lawrence) and whose relationship the State has sought to dignify.”  He also found that it “humiliates tens of thousands of children now being raised by same-sex couples.” 

So the analogy with Romer is very close; Colorado enacted Amendment 2 to make gay people unequal to others without any policy justification, and Congress enacted Section 3 to make gay peoples’ marriages unequal to those of others without any policy justification.  Interestingly, Kennedy omitted to discuss the specific policy justifications that BLAG advanced in its brief and oral argument, a failure that earned the scorn of Justice Scalia in his impassioned dissent. Having found that “the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage,” Kennedy concluded, “This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the 5th Amendment of the Constitution.”  He went on to explain that this is a deprivation both of liberty and of equal protection of the laws, as that concept has been found by the Court to be an essential part of the Due Process guarantee.  Early in the opinion, Kennedy made clear that all his references to “DOMA” refer only to Section 3, as the Court was not asked to rule on Section 2, the provision that purports to free states from any constitutional obligation to recognize same-sex marriages contracted in other states.

Kennedy ended with a final statement that the opinion “and its holding are confined to those lawful marriages,” i.e., “same-sex marriages made lawful by the State.”  Without expressly discussing whether the federal government is obligated to recognize same-sex marriage of individuals who reside in states that do not recognize such marriages, Kennedy’s closing paragraph creates some ambiguity on a very important point, since this decision, by its silence, leaves to the Executive Branch the task of figuring out how to implement federal laws and regulations without clear guidance.  Kennedy’s opinion might be read to restrict the federal obligation to recognizing marriages that are recognized by the state in which a couple resides, but it might alternatively be read to require the federal government to recognize lawfully contracted marriages regardless of where the couple happen to be when the issue arises.  The more expansive reading makes more sense, and seems consistent with the overall rhetorical stance of Kennedy’s opinion, but the history of subsequent reception of %Romer% and Lawrence shows Kennedy’s brand of inscrutable opinion-writing can give rise to contradictory views as to the precise holding of the Court.

Shortly after the opinion was announced, President Obama embraced the more expansive obligation of recognizing lawful marriages regardless of the couples’ residence, but emphasized that he was talking “as a president, not a lawyer,” and that it would be up to the Attorney General, working in concert with other department heads (and perhaps ultimately the federal courts), to sort this out.  Some department heads were quick on the draw.  Defense Secretary Chuck Hagel quickly indicated that the Defense Department would recognize lawful same-sex marriages for purposes of military benefits regardless of residence, and Secretary of Homeland Security Janet Napolitano chimed in similarly as to immigration issues administered by her department, including recognition of married bi-national couples for purposes of residency and citizenship applications.  The Office of Personnel Management for the federal government quickly fell into line, sending a notice to federal agencies on Friday that same-sex spouses of federal employees are now eligible for benefits coverage, retroactive to June 26, and establishing special open enrollment periods to get them signed up for benefits.  But it was less clear how this issue would be resolve for purposes of federal taxes, Social Security, and other programs that have traditionally relied on the place of residence in determining whether a couple is married.  The Internal Revenue Service issued a statement, saying that it would issue formal guidance as soon as possible, but without tipping its hand, setting off lots of speculation without hard data. 

Chief Justice Roberts’ dissenting opinion, after briefly stating agreement with Scalia’s view on jurisdiction, was devoted to attempting to cabin the impact of the decision by striving to characterize it as a “federalism” decision that would be of no relevance to the question whether same-sex couples have a right to marry under the 14th Amendment.  “The Court does not have before it,” he wrote, “and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation,’ may continue to utilize the traditional definition of marriage.”  And it is accurate to say that Kennedy made clear that the Court was not addressing that question.  Nonetheless, virtually ignoring Kennedy’s 5th Amendment analysis and ultimate statement that Section 3 violates the 5th Amendment while expressly eschewing a decision based on federalism, Roberts asserted: “The dominant theme of the majority opinion is that the Federal Government’s intrusion into an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.  I think that the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”  If that were the case, of course, the decision might be seen as having little relevance to the question whether states can deny gay people the right to marry.

But Justice Scalia emphatically disagreed, which explains why the Chief did not join that portion of his dissent devoted to the merits.  Characterizing Kennedy’s holding on the merits as “rootless and shifting” in terms of its “justifications,” he said, “For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations – initially fooling many readers, I am sure, into thinking that this is a federalism opinion.”  One of those fooled, evidently, was the Chief Justice, unless, as seems more likely, his puzzlement was more strategic than real.  But, said Scalia, although Kennedy’s opinion continues to refer to federalism from time to time as part of its 5th Amendment analysis, the frequent references to equality and liberty make this a 5th Amendment case. 

However, Scalia complains, “if this is meant to be an equal-protection opinion, it is a confusing one.  The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality.”  Scalia said that he would “review this classification only for its rationality,” and the Court purports to do that, since it cites Moreno as authority, expressly a rational basis case.  “As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.”  He then noted how Kennedy slipped back and forth between equality language and liberty language, but “never utters the dread words ‘substantive due process,’ perhaps sensing the disrepute into which that doctrine has fallen.”  (Disrepute in the Scalia household, perhaps, but not among those who disagree with the so-called originalist jurisprudence of Scalia and his acolytes on the Court.)  He also argued that this could not really be a due process case, because of the lack of a history of respect for same-sex marriage, a test that the Court has used in the past for determining whether particular conduct is entitled to protection under the Due Process Clause.  But Scalia was fighting a rear-guard action here, as Kennedy had eschewed the “history and tradition” test when writing for a majority of the Court in Lawrence, saying that longstanding historical regard for a right was not a necessary requirement for Due Process protection.  This is really part of the “living constitution” debate, in which Scalia recently took the position during a public talk that the Constitution is “dead, dead, dead” – not to say that the Constitution is meaningless, but rather to say that, in his view, the essence of a written Constitution is that its meaning is fixed upon its adoption and does not evolve over time.  This view has never won a firm majority on the Court, but Scalia writes as if it is well-established, as it is in his own mind.  Kennedy clearly disagrees, as do the four Democratic appointees and even, from time to time, Chief Justice Roberts.   Only Thomas and, perhaps, Alito, seem to adhere to Scalia’s views on this.

After ridiculing Kennedy’s opinion for never providing a fully-developed analysis of any of the doctrinal bases cited for the Court’s holding, 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 nonspecific 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.”  Scalia then went on to hotly dispute – as he did in his Romer and Lawrence dissents – that antigay animosity was behind the challenged law, rejecting the idea that anti-gay legislation is necessarily the result of bigotry.  He suggested that Kennedy failed to engage the arguments put forth by BLAG to defend Section 3 “because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them,” and accused the Court of labeling the proponents of DOMA as “enemies of the human race.” 

Also, as is his wont, Scalia predicted that the ultimate result of the opinion would be to decide the issues not presented to the Court, but beyond making predictions, and in a manner perhaps without precedent in the annals of the Supreme Court, Scalia inserted in his dissent several extended quotes from Kennedy’s opinion, edited to make the case that state laws denying same-sex couples the right to marry are unconstitutional.  Scalia provided a veritable roadmap for lower courts to use in striking down state anti-marriage amendments!  “By formally declaring anyone opposed to same-sex marriage an enemy of human decency,” he insisted, “the majority arms well every challenger to a state law restricting marriage to its traditional definition.”  Scalia concluded that the Court had improperly ventured into the political sphere, which is where he insisted that the issue of same-sex marriage should be resolved.

Alito’s dissent on the merits is more tempered than Scalia’s, adverting to the theories advocated by Prof. Robert George of Princeton University, a prominent foe of same-sex marriage who has argued that the traditional definition of marriage focused on its procreative potential and the complementarity of the two sexes, is an essential component of western civilization, with which we tamper at our peril.  After appointing out the different views as to the essential character of marriage, contrasting the traditional view of its procreative purpose and the modern view embraced by popular culture, Alito insisted that the Constitution takes no position between these two views and mandates neither.  Thus, the determination which view should be embraced by society is up to the polity speaking through the democratic process.  He argued that the Court should not intervene in this process.  “In our system of government,” he wrote, “ultimate sovereignty rests with the people, and the people have the right to control their own destiny.  Any change on a question so fundamental should be made by the people through their elected officials.”  And, “By asking the Court to strike down DOMA as not satisfying some form of heightened scrutiny, Windsor and the United States are really seeking to have the Court resolve a debate between two competing views of marriage. . .  The Constitution does not codify either of these views of marriage (although I suspect it would have been hard at the time of the adoption of the Constitution or the Fifth Amendment to find Americans who did not take the traditional view for granted).  The silence of the Constitution on this question should be enough to end the matter as far as the judiciary is concerned. . .  I would not presume to enshrine either vision of marriage in our constitutional jurisprudence.”

As noted above, Alito devoted a lengthy textual footnote, rather out of the blue, to deprecating the conduct of the Prop 8 trial, presenting this as an illustration of why, in his view, it is inappropriate for the courts to take on the same-sex marriage question.  “At times, the trial reached the heights of parody,” he wrote, “as when the trial judge questioned his ability to take into account the views of great thinkers of the past because they were unavailable to testify in person in his courtroom.”  He deprecated the contention in academic amicus briefs filed in Hollingsworth “that we are bound to accept the trial judge’s findings – including those on major philosophical questions and predictions about the future – unless they are ‘clearly erroneous.’  Only an arrogant legal culture that has lost all appreciation of its own limitations could take such a suggestion seriously,” he harrumphed.  Take that, you arrogant professors of constitutional law and civil procedure!  One suspects that Alito, who joined the dissent in Hollingsworth, was disappointed that he could not embody these comments in a majority or concurring opinion, and was eager to make these observations somewhere, so here they are in the other case.

The Proposition 8 Decision

The majority and dissenting opinions in Hollingsworth are shorter and need less discussion, since there was no comment in either concerning the merits of the 14th Amendment claim that Proposition 8, which inserted into the California Constitution an amendment providing that only different-sex marriages would be “valid or recognized in California,” violated the equal protection rights of same-sex couples. 

As noted above, Chief Justice Roberts, writing for the Court, accepted the contention that because the initiative proponents could not satisfy the traditional Article III standing test of having a tangible, personal interest in the outcome of the case (i.e., they were not asking the Court for a remedy specific to them, as Proposition 8 does not directly affect any of their own rights; presuming none of the proponents has any interest in marring a person of the same sex), they could not appeal the trial court’s decision.  If this means that sometimes state officials may rid themselves of noxious initiative products through the expedient of failing to defend them in the courts and then refusing to appeal the resulting decisions striking them down, then so be it.  That’s the way the system works, according to Roberts, because federal courts are only authorized to decide real cases between real parties.  “We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to,” concluded Roberts. “We decline to do so for the first time here.” 

At the same time, Roberts made clear, the trial court did have jurisdiction, despite the failure of the named defendants to provide a substantive defense, and thus there is no jurisdictional fault identified by the Supreme Court with District Judge Vaughn Walker’s ruling in the case.  Justice Kennedy, in dissent, argued that the alternative standing theory was adequate to make this appeal proper, resting on the California Supreme Court’s admitted role as the authoritative exponent of California law.  That didn’t impress Chief Justice Roberts.  Since federal standing is a question of federal law, the California Supreme Court’s ruling was not binding on the federal courts.  “The judgment of the Ninth Circuit is vacated,” he wrote, “and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.”  That should mean, in the normal course of events, that the 9th Circuit will lift its stay of Judge Walker’s Order, shifting the focus of attention to the implementation of that Order.

There was some comment about the “odd” line-up of the justices in this 5-4 ruling.  The Chief Justice was joined by Justice Scalia and three members of the “liberal wing” of the Court, Justices Ginsburg, Breyer, and Kagan.  Justice Kennedy’s dissent was joined by Justices Thomas and Alito and the remaining member of the “liberal” wing, Justice Sotomayor.  Thus, three justices who voted to strike down Section 3 of DOMA, and presumably would find Prop 8 to be unconstitutional, agreed with the Chief Justice that there was no jurisdiction to rule on the merits.  As to the dissenters, Justice Alito had found jurisdiction in Windsor and was clearly itching to uphold Proposition 8.  Justice Sotomayor, to judge by her general jurisprudential stance and her questions and comments at oral argument, would probably have voted to affirm the lower courts and strike down Prop 8 were she able to reach the issue.  Justice Thomas would most likely have agreed with Alito as to the merits.  Justice Kennedy’s views are more difficult to pin down, but one suspects that he would not be arguing so fiercely in favor of jurisdiction in this case if he did not have a strong view how it should be decided.  Perhaps reading the tea-leaves of his Windsor opinion and taking Scalia’s dissent at face value, Kennedy was also poised to strike down Prop 8.  So, the question occurs, if both Sotomayor and Kennedy were poised to strike down Prop 8, why did the other three “liberals” side with Roberts to dismiss the case? 

For months, commentators have been struggling with Justice Ginsburg’s views on Roe v. Wade and what they might portend for her position in the same-sex marriage cases.  Ginsburg has frequently stated that Roe was a premature and unduly expansive ruling, in light of the evolving political views on abortion rights at the time it was decided.  She has suggested that had the Court written a narrower decision, leaving the future scope of abortion rights to the legislative process, abortion might not have become the hot-button political issue that it quickly became, with all the divisive effects flowing from that development.  One speculates that Breyer and Kagan joined the Chief Justice in dismissing the appeal, having concluded that a decision on the merits might not strike down Prop 8 because Ginsburg might not supply the necessary fifth vote.  It may even be that Ginsburg joined out of the pragmatic view that a dismissal would result in allowing the district court’s opinion to go into effect and same-sex marriage to resume in California.  Thus, Prop 8 would be vanquished by default without the Supreme Court having to go on record as to whether same-sex couples have a right to marry under the 14th Amendment.  This might seem to be the most prudent way for the Court to deal with an issue as to which there remains much public controversy.  The art of avoiding merits decisions while obtaining desired results is a subtle weapon in the judge’s arsenal, perhaps cannily deployed here by Justice Ginsburg.  In this light, Justice Scalia’s concurrence with the Chief might seem odd, given his ardent opposition to same-sex marriage, but on the other hand his concurrence seems consistent with his impassioned dissent on jurisdiction in Windsor, in which the Chief concurred.

So, the bottom line on the Hollingsworth non-decision is that the Court, in effect, decided to let the district court opinion be the final, unreviewable word on the narrow question of whether Prop 8 was unconstitutional, without creating any precedent binding on other federal courts, since only appellate rulings create binding precedents.

But where did that leave the case after the stay was lifted and Judge Walker’s Orderwent into effect?  As to that, there was not complete agreement among the “parties” – if that term is loosely deployed to take in the original plaintiffs, the named defendants, and the intervenors whose standing to appeal had been definitively rejected by the Supreme Court.  The plaintiffs argued all along that if the appeal was dismissed, Judge Walker’s Order required the state of California to make marriage licenses available to same-sex couples and to recognize those marriages as fully equal to the marriages of different-sex couples throughout the state, not limited to the two counties (Alameda and Los Angeles) whose clerks were named defendants, and certainly not limited to the two plaintiff couples who brought the case.  In its 2009 decision finding that Prop 8 had been duly enacted, the California Supreme Court made clear that same-sex couples who married prior to the passage of Prop 8 remained married, and that their marriages were entitled to equal treatment under California law.  Indeed, that Court also ruled that pursuant to its prior decision on the merits in the marriage cases, domestic partnerships in California would be entitled to the same status as marriages under state law in order to satisfy the court’s equal protection and due process holdings.  It became clear after the Supreme Court’s decision was announced that Governor Jerry Brown (who was an original named defendant as attorney general) and Attorney General Kamala Harris agreed with that view.   Comments by the justices during the oral argument hinted that dismissal on grounds of jurisdiction was a likely outcome, and Governor Brown, anticipating the ruling, asked the attorney general for an analysis of “the scope of the district court’s injunction.”  She prepared a letter, which is dated June 3, advising the governor that “the injunction would apply statewide to all 58 counties, and effectively reinstate the ruling of the California Supreme Court in In re Marriage Cases (2008), 43 Cal.4th 757,857.” Harris concluded that the Department of Public Health could instruct all county officials to resume issuing marriage licenses and recording the subsequent marriages upon the lifting of the stay.  The governor accepted this advice, and hours after the Supreme Court’s opinion was announced, the Department sent instructions to all County Clerks and County Recorders accordingly.  As soon as the stay was lifted, the plaintiffs were alerted, rushed to get their marriage licenses, and were promptly married.  Some clerks offices planned to stay open late Friday to process license applications from same-sex couples.

The initiative proponents had a different view, not unexpectedly, and Andrew Pugno, their California counsel, argued that a trial court ruling is not binding beyond the immediate parties.  He contended that the only couples entitled to the benefit of Walker’s Order were the plaintiffs. This was not brought as a class action, he contended, and all the clerks in the state were not joined as co-defendants.  He also argued that it was established in California law that only appellate rulings have statewide effect.  Whether that would be true concerning a federal district court ruling as opposed to a California trial court ruling seems questionable, in light of the Supremacy Clause of the U.S. Constitution.  If Prop 8 is unconstitutional as a basis for denying marriage licenses to the plaintiffs, surely it is unconstitutional if used to deny marriage licenses to any other similarly-situated same-sex couple anywhere in California, and principles of res judicata should prevent the need to re-litigate the matter in each county.  Pugno threatened to take some sort of legal action to block implementation of the Order beyond the immediate parties, and criticized the lifting of the stay by the 9th Circuit panel and subsequent performance of marriages as lawless and inappropriately rushed.

As to timing, the Supreme Court’s procedures give disappointed parties up to 25 days to file motions for rehearing, after which the Court sends its mandate out to the lower court, in this case ordering dismissal of the appeal.  It seemed unlikely that the Court would grant rehearing in either case, as that would require the disappointed party to persuade a member of the majority to change his or her views.  The 9th Circuit Clerk filed an entry acknowledging receipt of the Court’s decision promptly after it was announced, a welcome artifact of our modern age of near-instantaneous electronic accessibility of high court rulings, and responded promptly to Attorney General Harris’s request to the lift the stay.  Perhaps facts on the ground will successfully outflank any attempt by the proponents to interfere with the speedy implementation of the Order.

Also on Friday, the 28th, came what is probably the first judicial reliance on U.S. v. Windsor, as a federal district judge in Michigan cited the case in ruling on pending pretrial motions in an action challenging the Attorney General’s position that an anti-marriage amendment prevents the implementation of a recently enacted domestic partnership law.  More details on that when I’ve had an opportunity to read the opinion.

Circuit Judge Dings DOMA and Oregon Marriage Amendment in Grievance Ruling on Benefits

Posted on: April 26th, 2013 by Art Leonard No Comments
Judge Harry Pregerson of the U.S. Court of Appeals for the 9th Circuit, sitting as Chair of the 9th Circuit’s Standing Committee on Federal Public Defenders, ruled that Alison Clark, an assistant federal public defender in the Office of the Federal Public Defender for the District of Oregon, is entitled to received coverage for her same-sex spouse under the Federal Employees Health Care Benefits Program.  In the Matter of Alison Clark, Case No. 13-80100 (9th Circuit, April 24, 2013) (unpublished).   In the course of reaching this decision, Judge Pregerson found that Oregon’s Measure 36, the 2004 ballot initiative that bans recognition of same-sex marriages in Oregon, violates the 14th Amendment, and he made a similar finding as to Section 3 of the federal Defense of Marriage Act.  Furthermore, he found that the federal government must recognize Clark’s same-sex marriage, contracted in Canada, even though she and her spouse live in a state where that marriage might not be recognized.

Clark married her same-sex partner, Anna Campbell, on June 23, 2012, in British Columbia, Canada.  A few weeks later, she applied for benefits under the Federal Employee Health Benefits Act, which applies to lawyers employed as federal public defenders.  The Act allows federal employees to elect family coverage, which can include their “spouse.”  The Administrative Office of the Federal Courts rejected the application, asserting that it was bound under Section 3 of DOMA to find that Campbell is not Clark’s spouse.  Furthermore, under Measure 36, Campbell and Clark are not recognized as spouses by their state of residence, either.  Clark filed a complaint under the Plan’s grievance system, arguing that the Benefit Plan’s own non-discrimination provision, which lists sexual orientation as a prohibited ground of discrimination, was violated, as well as the 5th Amendment equal protection and due process requirements.  Clark’s complaint ended up before the Committee, chaired by Judge Pregerson, and his opinion is consistent with rulings in two prior 9th Circuit cases presenting similar facts from federal court employees in California who had married in 2008 prior to the passage of Proposition 8, the main difference being that this marriage was contracted in Canada.

First Judge Pregerson found that this was an instance of sexual orientation discrimination, stating, “The only reason Clark was unable to make her spouse a beneficiary under the FEHB program was that, as a homosexual, she had a same-sex spouse.”  Thus, the Plan’s non-discrimination provision was violated.

Next, he addressed the issue of whether Oregon could refuse to recognize the marriage.  Before Measure 36 was passed, he observed, “Oregon law did not expressly limit marriage as between a man and a woman,” although the courts had construed the marriage law to be so limited.  Measure 36 amended the state constitution to provide: “It is the policy of Oregon, and its political subdivisions, that only a marriage between one man and one woman shall be valid or legally recognized as a marriage.”  Pregerson opined that heightened scrutiny was the appropriate standard to evaluate Clark’s claim, but that it was unnecessary to reach that issue because “Measure 26 fails under rational basis review.”  He pointed out that under the Supreme Court’s 1996 decision, Romer v. Evans, 517 U.S. 620 (1996), “a classification treating homosexual individuals differently from heterosexual individuals cannot rationally be justified by the government’s animus towards homosexuality. . .  Here, Oregon does not state any reason for preventing same-sex couples from marrying.” 

Based on the arguments that had been made by proponents of California’s similarly-worded Prop 8 in Perry v. Schwarzenegger, Pregerson found that none of the purported state interests were “rationally related to prohibiting same-sex marriages.”  He made short work of the “responsible procreation,” “stable and enduring families for raising children,” and “proceed with caution in changing a basic social institution” arguments.   “While other possible objectives for Measure 36 exist,” he wrote, “I can see no objective that is rationallyr elated to banning same-sex marriages, other than the objective of denigrating homosexual relationships,” and such an objective would be impermissible under Romer.  Although he didn’t then go on to expressly  connect the dots, the implication was that Clark and Campbell’s marriage would be entitled to recognition in their state of residence, Oregon, as a matter of equal protection.

Having thus concluded, Pregerson did not need to address the alternative due process argument, but did so anyway.  He found that strict scrutiny should apply, because Supreme Court precedents supported the conclusion that the right to marry is a fundamental right.  However, again, he found that it wasn’t necessary to go this far, since Measure 36 flunked rational basis review, and thus, that Measure 36 “violates the due process rights of same-sex couples.”  “I next consider whether, given Clark and Campbell’s valid marriage, it is constitutionally permissible for the federal government to deny Clark’s request for spousal FEHB benefits.  I hold that it is not.”

Here, the barrier is Section 3 of DOMA.  Judge Pregerson found that “three rationales” for Section 3 listed in the House of Representatives report on DOMA to be insufficient under rational basis review.  He noted the Congressional Budget Office report, cited by the 1st Circuit in Massachusetts v. U.S. Dep’t of Health & Human Servs., 682 F.3d 1, 14 (1st Cir. 2012), to the effect that DOMA did not save the federal government money, because the net effect of repealing Section 3 would be to save money for the government, cost savings from recognizing same-sex families outweighing possible tax revenue losses.  Furthermore, he wrote, “there is no rational basis for distinguishing between same-sex couples and opposite-sex couples if the government’s objective is to cut costs.”  He concludes that Section 3 is unconstitutional under both the equal protection and due process requirements of the 5th Amendment.

The Obama Administration’s stance since February 2011 has been that Section 3 is unconstitutional but will be enforced until it is repealed or definitely invalidated by the courts.  The Supreme Court heard oral argument in March in United States v. Windsor, whose resolution may determine whether Section 3 is constitutional.  But Judge Pregerson is apparently not inclined to wait for that ruling.  Having held that denial of Clark’s application violates the Plan and the Constitution, provided a remedy.  “I therefore order the Director of the Administrative Office of the United States Court to submit Clark’s FEHB Health Benefit Election form, which she signed and submitted on July 12, 2012, to the appropriate health insurance carrier.”  He also affirmatively orders that the Office process future “beneficiary addition requests without regard to (1) the sex of a listed spouse and (2) whether a validly executed same-sex marriage is recognized by a state.”   In case the federal Office of Personnel Management “blocks this relief,” he would alternatively order monetary relief, along the lines that the 9th Circuit has approved in the Levenson case from California, providing the funds necessary to compensate Clark for the cost of obtaining insurance coverage for her spouse.  This, of course, would cost the government more than including Clark’s spouse under the employee group insurance policy. 

Judge Pregerson’s ruling, which is non-precedential and only binds the parties, nonetheless takes on a question left hanging during the Windsor oral argument, of whether the constitution would require the federal government to recognize legally-contracted marriages, regardless where the married couple resides.  This is a significant question because state marriage laws generally do not have residency requirements, so many same-sex couples who live in states that do not authorize or recognize same-sex marriages have gone to other states (or countries, usually Canada) to get married, but are living in jurisdictions that don’t recognize their marriages.  When questioned about such situations during the Windsor argument, her counsel, Roberta Kaplan, stated that the plaintiff was only asking for federal recognition in states that recognized the marriages, but it is difficult to see how a federal constitutional right could be so cabined, and it would be unfortunate if the Supreme Court were to hold Section 3 invalid without addressing this question of broader application.

Federal Judge Certifies Class Actions Against DOMA Section 3

Posted on: April 23rd, 2013 by Art Leonard No Comments

A federal district judge in Los Angeles has certified a nationwide class action lawsuit attacking the constitutionality of Section 3 of the Defense of Marriage Act in the context of spousal immigration rights.  Having denied a motion to dismiss the case by the  Justice Department and the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) on April 19, Judge Consuelo B. Marshall then determined in a separate ruling that plaintiff Jane DeLeon and her attorneys, Peter A. Schey and Carlos R. Holguin of the Center for Human Rights & Constitutional Law, may sue on behalf of “all members of lawful same-sex marriages who have been denied or will be denied lawful status or related benefits under the Immigration and Nationality Act (INA) by the Department of Homeland Security (DHS) solely due to Section 3 of the Defense of Marriage Act (DOMA).”

The INA extends special status to foreign nationals who are lawfully married to U.S. citizens for purposes of residency and applications for citizenship, but  DHS has refused to recognized lawfully married same-sex couples because Section 3 of DOMA provides that only a marriage of one man and one woman will be recognized for purposes of federal law.  The Supreme Court is expected to rule on a constitutional challenge to Section 3 by the end of its current term in June, in a case where Edie Windsor, the surviving same-sex spouse of a U.S. taxpayer, is suing for a refund of estate taxes that would not have been due if the government had recognized their marriage.

If the Supreme Court rules on the merits that Section 3 violates the 5th Amendment, this national class-action lawsuit could be quickly resolved with an order to DHS to stop relying on DOMA and to extend equal treatment to same-sex marriages.  If, as is possible but less likely, the Supreme Court resolves the Windsor case on narrower grounds, this new lawsuit would proceed with the potential to bring the question back up to the Supreme Court in the immigration context.

Jane DeLeon, a citizen of the Philippines, came to the United States on a visitort visa late in 1989 and stayed.  She had lived for several years in the Philippines in a non-ceremonial marriage with Joseph Randolph Aranas, with whom she had two sons, but that relationship appeared to be over when she came to the United States.  Aranas followed her here, however, and they lived together again briefly.  However, in 1992 she met Irma Rodriguez, and they started living together in California.  In August 2008, they were married there.

A few years prior to the marriage, DeLeon’s employer had applied on her behalf for permanent resident status, her visa petition was approved, and she filed an application for “adjustment of status” for herself and her son, Aranas, but DHS decided she and her son were inadmissible because, they claimed, she had misrepresented her name and marital status when she first entered the U.S.  At that time, she had identified herself as “Jane L. Aranas,” a “housewife.”  DHS instructed her to apply instead for a “waiver of inadmissibility,” premised on hardship to her U.S. citizen spouse or parent, and she applied for such a waiver, citing her elderly father, who is a U.S. citizen.  But this application was denied in 2011.  On advice of her attorneys, she then filed a new application, citing her wife, Irma Rodriguez, as the person who would suffer hardship if DeLeon was required to leave the U.S.  DHS denied this application, citing DOMA Section 3 and refusing to recognize her marriage with Rodriguez.

DeLeon’s lawsuit claims a violation of her rights under the 5th Amendment, citing both equal protection and due process of law, as well as sex discrimination. Her son and wife also joined as co-plaintiffs, but Judge Marshall found that neither of them had “standing” to be in the case.  However, the court found that DeLeon’s complaint stated a claimed for violation of her equal protection rights.

The Justice Department, representing DHS, raised various technical defenses and succeeded in getting Judge Marshall to remove the co-plaintiffs and narrow the legal theories of the complaint.  Applying 9th Circuit precedents, Judge Marshall found that Section 3 will be subject to judicial review using the rational basis test.  In line with Obama Administration policy, the Justice Department conceded various points on the merits of the equal protection claim.  However, BLAG, which was allowed to intervene as a defendant, made much the same arguments that it put forward in the Windsor case, including arguments that the Administration no longer makes about defending traditional marriage and preferring different-sex couples as parents.

 Judge Marshall observed that the 9th Circuit Court of Appeals, whose rulings are binding on her court, had already rejected most of those arguments in recent rulings such as Perry v. Brown, the Proposition 8 case, and Diaz v. Brewer, a ruling concerning domestic partner benefits claims by Arizona state employees.  There was one argument, however, that had not yet been considered by the 9th Circuit, as it has not yet ruled on the merits in a challenge to Section 3 of DOMA.  That is the argument, pushed strongly by BLAG in the oral argument before the Supreme Court in the Windsor case, that the federal government needs to have a uniform national definition of marriage to administer its myriad programs, and can insist on using the “traditional” definition that is followed in an overwhelming majority of the states.

Judge Marshall, observing that under this argument legally-married same-sex couples are treated differently from different-sex couples, found that such an approach failed the rationality test.  “This Court finds that the broad distinction created by DOMA Section 3 is not rationally related to Congress’ interest in a uniform federal definition of marriage,” she wrote.  “Contrary to [BLAG]’s argument, DOMA Section 3 does not ‘ensure that similarly situated couples will be eligible for the same federal marital status regardless of the state in which they live.’  Opposite-sex couples may receive federal marriage-based benefits if joined in a valid state marriage.  Same-sex couples will not, even if like Plaintiffs, they are joined in a valid state marriage.  The Court further finds that Plaintiffs have stated a claim that DOMA Section 3 violates their equal protection rights.”

However, Judge Marshall rejected the claim that failure to recognize same-sex marriages violates the 5th Amendment’s substantive due process requirements.   “To sustain a due process challenge,” she wrote, “Plaintiff DeLeon must show that her ‘right to maintain family relationships and personal choice in matters of marriage and family life free from undue government restrictions’ is a qualifying liberty interest of which she was deprived.”  While conceding that DeLeon has a liberty interest in ‘autonomy…in her personal decisions relating to marriage, procreation, family relationships and child rearing,” she wrote, citing Lawrence v. Texas,” she asserted that “it is not readily apparent, however, how DOMA infringes on DeLeon’s liberty interests,” since it does not involve the imposition of any criminal or civil penalties on DeLeon “based on her homosexuality.”  Finding that DeLeon’s due process rights “are not implicated by DOMA,” the court dismissed this part of her case.

The court’s decision to certify this case as a nationwide class action is particularly significant, as it involved the court’s finding that there is a common question of law for everybody included in the description of the class.  A ruling on the constitutionality of Section 3 will be dispositive in rejecting the DHS’s reliance on that provision to refuse recognition to same-sex marriages involving foreign nationals and U.S. citizens.  The court rejected the government’s argument that ultimately every status petition turns on its own individual facts, such that its ultimate disposition will depend on much more than the Section 3 issue.  Since the Section 3 issue is the threshold issue prior to any ruling in individual cases, the court concluded that it was appropriate for it to be decided in one proceeding, and that DeLeon and her attorneys were qualified to represent the interests of a broadly-defined national class of plaintiffs, even though some of those in the class might be disqualified for other reasons from being allowed to remain in the U.S., to work here, or eventually to become a citizen.

In a further ruling, however, Judge Marshall rejected DeLeon’s motion for preliminary injunctive relief pending trial.  This motion argued that the court could decide, as a matter of law, that Section 3 is unconstitutional and immediately order DHS not to rely upon it.  In order to grant such a motion, the court would have to find that it was highly likely that DeLeon would prevail after a trial on the merits, that she would suffer “irreparable injury” if preliminary relief isn’t granted, that the hardship on the government of receiving such a ruling did not outweigh the hardship on DeLeon of denying it, and whether the public interest would be advanced by granting such relief.  All four of these criteria must be met for relief to be granted, and Judge Marshall concluded that three of the criteria were present, but that the irreparable injury was not.

She found persuasive the government’s argument that under recent Obama Administration policy directives, DHS is not actively seeking to remove same-sex spouses of U.S. citizens while all await a ruling on the merits from the Supreme Court in the Windsor case.    “Defendants and Intervenor provide evidence that the appropriate application of prosecutorial discretion to immigrants in same-sex marriages has already been clarified as part of a comprehensive policy update in three memoranda issued by ICE Director John Morton to all ICE employees,” she wrote.  “While DeLeon and the plaintiff class have undeniably been harmed by the potentially unconstitutional application of DOMA Section 3 to their immigration petitions, it is less clear whether any members of the plaintiff class are likely to suffer irreparable injury pendent lite [while the case is pending].  The Morton memo provides detailed guidance on the proper exercise of ICE’s prosecutorial discretion.  The October 5, 2012, amendment to the Morton Memo specifically expanded ICE prosecutorial discretion for the benefit of those in same-sex family relationships.”  The judge observed that none of the cases cited by the plaintiffs to support their irreparable injury argument actually post-dated October 5.

Having satisfied itself that preliminary relief was not necessary to prevent injury to the plaintiff class, the court denied the petition.

Is DOMA (Section 3) Doomed? Supreme Court Argument Suggests That Possibility

Posted on: March 27th, 2013 by Art Leonard No Comments

This morning, March 27, 2013, the Supreme Court heard oral arguments in United States v. Windsor, No. 12-307, in which Edith Schlain Windsor, the surviving spouse of Thea Clara Spyer, sued the federal government in her capacity as executor of her wife’s estate for a refund of the estate tax that was levied in 2009.  At issue in the case is the constitutionality of Section 3 of the federal Defense of Marriage Act (DOMA), which defines marriage for all purposes of federal law as the union of one man and one woman.

Windsor and Spyer, who resided in New York, married in Canada in 2007, having lived together as a couple for several decades.  In 2008, before Spyer passed away, intermediate appeals courts in New York began to rule that same-sex marriages contracted lawfully elsewhere (including in Canada) would be recognized in New York.  (In 2011, New York passed a marriage equality law.)  After Spyer died in 2009, the Internal Revenue Service expressly relied upon Section 3 of DOMA to reject the claim that Spyer’s bequest to Windsor was shielded from estate taxes by the marital deduction.

Before responding to Windsor’s complaint, the Obama Administration changed its position on the constitutionality of Section 3, which it had been defending in litigation then pending before the 1st Circuit Court of Appeals in Boston.  Attorney General Eric Holder announced that he and the president had concluded that Section 3 violated the Equal Protection Clause and was indefensible, but the president had ordered that the executive branch continue to enforce the statute until it was either repealed or declared unconstitutional.  As part of that analysis, the government abandoned the position it had taken in defending a DOMA case in the 1st Circuit, where it had contended that Section 3 was defensible under rationality review, and embraced the view that laws discriminating based on sexual orientation are subject to heightened scrutiny, requiring the government to prove that the challenged law substantially advances an important government interest.  This, argued the Justice Department, DOMA did not do.

Consequently, the Justice Department filed a motion to dismiss Windsor’s case, in which it asked the district court to declare the statute unconstitutional!  (Read that sentence more than once.)  The district court ruled that Section 3 lacked a rational basis, after allowing counsel on behalf of the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, Paul Clement, to intervene in defense of the statute.

The Justice Department, despite getting exactly the ruling on the merits for which it had argued, appealed the case to the 2nd Circuit Court of Appeals, in search of the “definitive” ruling on Section 3’s constitutionality that the president had set as a criterion for ceasing to enforce the statute, but it was BLAG, still acting as an intervening defendant and now appellant, that argued to the court that the statute was constitutional. The 2nd Circuit agreed with the Justice Department’s argument that the statute was subject to heightened scrutiny and was unconstitutional, ordering a tax refund for Windsor, but the order was stayed pending further review.  Every party in the case — Windsor, the Justice Department, and BLAG — filed petitions for certiorari with the Supreme Court.  The Court granted the Justice Department’s petition on December 7, 2012.  The Court has not acted on the other petitions, or on petitions filed in other DOMA-related cases, including the 1st Circuit ruling declaring Section 3 unconstitutional.

When the Court granted the petition, it added the question whether the case was properly before the Court due to two problems: (1) The Petitioner (the Justice Department) did not disagree with the 2nd Circuit’s disposition of the case, so there was some question whether the Petitioner was presenting the Court with a real “case or controversy,” as required by the Court’s precedents, or merely a request for an advisory opinion; (2) There was some question whether BLAG, which had been allowed by the lower courts to participate as an intervening party in the case, had “standing” to participate at the appellate level in defense of the statute.  After having asked the parties to brief and argue these issues, the Court — realizing that all of the parties to the case wanted the Court to rule on the merits and would be unlikely to argue against jurisdiction — appointed Prof. Vicki Jackson of Harvard Law School to act as an “amicus curiae” (friend of the Court) to brief and argue in support of the proposition that the Court lacked jurisdiction over the case and that BLAG lacked standing to participate as a party.

The Court allocated Prof. Jackson substantial time – ultimately, almost half an hour – to make her argument, followed by extensive argument from Deputy Solicitor General Sri Srinivasan and counsel for BLAG, Paul D. Clement, in what can only have been a stultifyingly boring trial for most of the audience in the courtroom, who came to hear arguments about the constitutionality of DOMA and were instead subjected to nearly an hour of arcane federal jurisdictional and procedural jargon.  Little happened during this part of the argument that wasn’t already gone over in the pre-hearing briefs filed with the Court, so the main interest was in discerning whether the Justices might signal by their questions and comments how they lined up on the issues of jurisdiction and standing.  Having read the transcript and listened to the audio recording, I am left with the impression that the more conservative Justices, reading the tea leaves, know that Section 3 would likely be struck down on the merits and would like to see the case dismissed on jurisdictional grounds, while the more moderate to liberal justices, who are eager to strike down Section 3, are willing to accept the Justice Department’s somewhat strained argument that it is an “aggrieved party” on the losing end of a Court of Appeals decision, facing an order to dispense $363,000 from the federal treasury.  As usual, all eyes and ears were on Justice Anthony Kennedy, the potential tie-breaker.

Kennedy’s first interjection in the argument suggested that he will line up with those finding a basis for jurisdiction.  After Prof. Jackson asserted that “a party on appeal has to meet the same Article III standing requirements of injury caused by the action complained of and redressable by the relief requested by the parties” as a plaintiff at trial, Justice Kennedy said, “But it seems to me there’s an injury here,” and Justice Elena Kagan picked up the ball, stating, “To go back to Justice Kennedy’s point, we have injury here in the most classic, most concrete sense.  There’s $300,000 that’s going to come out of the Government’s treasury if this decision is upheld, and it won’t if it isn’t.”  That got the conversation rolling. 

At bottom, the Court’s concern is whether it is deciding something that actually matters to the parties in terms of an economic or liberty interest, or whether it is just being asked in the abstract to decide a question of legal doctrine, which it does not have the power to do as a federal court in the absence of a “real case.”  The Justices inclined to find jurisdiction emphasized that there was something real at stake here: not just Windsor’s tax refunds but the rights of married same-sex couples under more than 1100 provisions of federal law for which marital status is relevant.

There was some colloquy, apparently a bit exasperated on the part of Chief Justice John Roberts, about the president’s position of continuing to enforce DOMA while refusing to defend it on constitutional grounds.  Roberts asked why the president did not have the “courage” to act on his convictions and order the government to stop enforcing Section 3.  In questioning the Deputy Solicitor General, Roberts asserted that the Justice Department was “asking us to do something we have never done before to reach the issue in this case.”   There is a first time for everything, of course, and — as the late Justice William Brennan was fond of saying, “you can do anything you like around here if you can count to 5” — so if a majority of the Justices find that there is a real “case and controversy” before them, they are likely to find that they have jurisdiction, regardless of precedent.  

The Justices spent so much time grilling Prof. Jackson about the “case or controversy” issue that she was unable to address the second issue of BLAG’s “standing” at any length, so that was played out mainly in the arguments by Mr. Srinivasan and Mr. Clement. This discussion focused heavily on the precedent of the Chadha case, where the two houses of Congress were granted intervenor status to argue in support of a statute that gave the houses of Congress veto power over decisions by the Immigration Service not to deport an deportable alien.  Mr. Chadha was a deportable alien whom the Service decided not to deport. The House voted to overrule this decision, and Mr. Chadha sued the Immigration Service to block his pending deportation.  The Immigration Service argued that the statute was unconstitutional, and the House and Senate both intervened to defend their statutory right to veto these decisions.  This part of the argument seemed rather pointless, since the Court had allocated Mr. Clement substantial time to argue on the merits, so the views of the Republican leadership of the House in support of Section 3 were going to be presented to the Court, regardless whether they decided that BLAG had standing.  Clement urged the importance of deciding the standing issue in his favor, however, for the sake of future cases, pointing out that participation as an “amicus” rather than an intervening party was distinctly inferior, especially because a party can conduct pre-trial discovery, including compelling the production of evidence, which is not available to an “amicus.” 

In her brief, Prof. Jackson argued that the absence of BLAG from the case as a party would deprive the case of “adverseness” on the issue of DOMA’s constitutionality, given the positions of the Justice Department and Windsor, and, she further argued, BLAG lacked standing, thus contributing to the Court’s lack of jurisdiction over the case. 

Jurisdictional questions loomed large on Tuesday in the Proposition 8 argument, where it appeared from the comments of the Justices that there might be substantial support for avoiding the merits of a constitutional claim to the right to marry by disposing of the case on these non-merits grounds, but despite the allocation of substantial time to the issue during the DOMA argument, ultimately the jurisdictional issues did not loom so heavily, since it appeared possible that there was a majority for striking DOMA and the Justices in the majority would find a rationale for asserting jurisdiction and getting to the merits.  After hearing a final rebuttal argument from Prof. Jackson, Chief Justice Roberts noted for the record that she had briefed and argued the case at the invitation of the Court, commenting, “you have ably discharged the responsibility, for which you have the gratitude of the Court.”  Then the argument turned to the merits, and the return of Mr. Clement.

Clement sought to frame the case as a “federalism” case rather than an equal protection case.   He contended that the states as sovereigns have the right to define marriage for their purposes, and the federal government as a sovereign has the right to define marriage for its purposes.  He also argued that as of the year DOMA was adopted (1996), whenever Congress had adopted a statute that included some reference to marriage, it was always with the understanding of the traditional opposite-sex definition of marriage, and that in Section 3 Congress was doing no more than adding a provision to the federal Dictionary Act consistent with that understanding.  Justice Ruth Bader Ginsburg immediately led the charge for the Justices inclined to strike down Section 3, suggesting that a state law marriage that was denied all federal benefits would be distinctly lesser.

What people were waiting for was to see whether Justice Kennedy would show his hand, which he soon did.  Clement asserted that Congress did not interfere with the right of states to define marriage.  “It would obviously be a radically different case,” he said, “if Congress had, in 1996, decided to try to stop States from defining marriage in a particular way or dictate how they would decide it in that way.”  “Well,” said Justice Kennedy, “it applies to over what, 1100 Federal laws, I think we are saying?  So it’s not — I think there is quite a bit to your argument that if the tax deduction case, which is specific, whether or not if Congress has the power it can exercise it for the reason that it wants, that it likes some marriage, I suppose it can do that.  But when it has 1100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”  Kennedy then challenged Clement’s argument that DOMA was about maintaining uniformity for purposes of federal law, stating, “Well, but it’s not really uniformity because it regulates only one aspect of marriage.  It doesn’t regulate all of marriage.”  

Further on in the argument, Kennedy alluded to a point that seemed to have struck him with particular force during the Proposition 8 argument, by mentioning “the right of children,” presumably shorthand for invoking the disadvantages children might suffer if their parents’ marriage was not recognized for federal purposes.

Then, after Clement asserted that a function of DOMA was to avoid having the states expand the class of people eligible for federal benefits if they allowed same-sex marriages, Ginsburg intervened, stating, “They’re not a question of additional benefits.  I mean, they touch every aspect of life.  Your partner is sick.  Social Security.  I mean, it’s pervasive.  It’s not as though, well, there’s this little Federal sphere and it’s only a tax question.  It’s, as Justice Kennedy said, 1100 statutes, and it affects every area of life.  And so you are really diminishing what the State has said is marriage.  You’re saying, no, State said two kinds of marriage: the full marriage, and then this sort of skim milk marriage.” 

Justice Kagan then brought home the point that prior to passage of DOMA, “the only uniformity that the Federal Government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.”  Turning the argument to whether pursuit of uniformity was the real reason for DOMA, Kagan continued, “So, this was a real difference in the uniformity that the Federal Government was pursuing.  And it suggests that maybe something — maybe Congress had something different in mind than uniformity.  So we have a whole series of cases which suggest the following: Which suggest that when Congress targets a group that is not everybody’s favorite group in the world, that we look at those cases with some — even if they’re not suspect — with some rigor to say, do we really think that Congress was doing this for uniformity reasons, or do we think that Congress’s judgment was infected by dislike, by fear, by animus, and so forth?”  This shifted the argument back to the historical context of DOMA’s enactment, and led Justice Kennedy to raise the federalism issue that may be his defining issue in the case:  “The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”  Clement insisted that DOMA was not regulating marriage, merely defining it for purposes of federal law, but this didn’t stand up very well considering how “intertwined” — to use Kennedy’s term — federal law is with the everyday lives of people, especially when it comes to economic issues such as Social Security, taxes, and public benefits law, for all of which marital status can make a big difference.

When Solicitor General Donald Verrilli got up to argue, Chief Justice Roberts sought to engage him in an extended, rather pointless, colloquy about federalism and the limits of Congress’s power to define terms used in federal statutes, but Verrilli did get around to making his main points about the discriminatory impact of DOMA.  Justice Samuel Alito posed an interesting hypothetical about three soldiers with same-sex civilian partners; one married, one in a civil union, one in a committed relationship in a state that provided neither legal status.  He asked whether in all three cases the civilian partner would be entitled, under the government’s argument, to be notified in the event the soldier was wounded.  This responded to Verrilli’s opening argument about how DOMA interferes with the spouse’s right to be notified, confirmed when Verrilli conceded that only the spouse would be entitled to notification under the government’s argument.  “The question in the case” before the Court, responded Verrilli, “is whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed.  And it does not.  The only way in which BLAG’s arguments for the constitutionality of this statute have any prospect of being upheld is if the Court adopts the minimal rationality standard.”  Verrilli argued for heightened scrutiny, based largely on the history of anti-gay discrimination by the government, and did not depart from the government’s continuing position that Section 3 would survive under traditional rationality review.

Chief Justice Roberts sought to rehabilitate BLAG’s case against heightened scrutiny by posing questions about the recent political successes of the gay rights movement, suggesting that gay people can achieve their rights through the normal legislative process without the assistance of heightened scrutiny in constitutional litigation, and Clement sought to drive home this point in his brief rebuttal, when he concluded with a plea to the Court, reminiscent of the closing argument by Charles Cooper on behalf of the Proponents of Proposition 8, to allow the issue of gay marriage to be resolved through the political process.

Roberta Kaplan, whose advocacy of Edie Windsor’s case was successful in the District Court and the Court of Appeals, had been relegated by the Supreme Court almost to the status of a bystander, given brief argument time towards the end.  Parting company slightly from the Solicitor General’s argument, which was premised on heightened scrutiny, Kaplan argued that Section 3 of DOMA “fails even under rationality review.  Because of DOMA,” she continued, “many thousands of people who are legally married under the laws of nine sovereign states and the District of Columbia are being treated as unmarried by the Federal Government solely because they are gay.” 

Chief Justice Roberts and then Justice Antonin Scalia tried to drag her back into the federalism arguments that  had been posed to the Solicitor General, asking whether Congress would be within its authority if it adopted a federal definition of marriage that included same-sex couples for purposes of Federal benefits and applied that uniformly throughout the country, even in states that did not recognize any legal status for same-sex partners.  “I think the Federal Government could extend benefits to gay couples to equalize things on a programmatic basis to make things more equal,” Kaplan responded. “Whether the Federal Government can have its own definition of marriage, I think, would be very closely argued whether that’s outside the enumerated approach,” by which she seemed to be saying that only the states can decide who can marry.  After some intense back and forth with Scalia, she concluded on this point, “I’m not sure the Federal Government can create a new Federal marriage that would be some kind of marriage that State’s don’t permit.” 

In response to further questioning along this line by Justice Alito, Kaplan appeared to narrow the plaintiff’s claim in this case.  Alito was asking, in effect, whether stiking Section 3 and recognizing legally married couples for purposes of federal benefits would extend to couples living in states that did not recognize such marriages.  (For example, a couple residing in North Carolina who were married in New York.)  Alito wanted to know whether the equal protection problem argued by Kaplan would occur if the federal government refused to recognize their marriage.  “Our position is only with respect to the nine States — and I think there are two others that recognize those marriages,” she replied.  “So if my client — if a New York couple today marries and moves to North Carolina, one of which has a State constitutional amendment — and one of the spouses dies, they would not — and estate taxes determine where the person dies, they would not be entitled to the deduction. That is not our claim here.” 

Actually, the Respect for Marriage bill pending in Congress, which would repeal Section 3 and substitute federal recognition for same-sex marriages validly contracted under state law, would provide a different answer to that question, requiring the federal government to continue to recognize the marriage, but Kaplan’s argument just went to the constitutional issues posed by Justice Alito in his hypothetical case, not to the question of what would be politically desirable.  However, Alito’s question raised a red flag about whether that portion of the proposed bill would raise federalism questions. 

Justice Stephen Breyer asked Kaplan to respond to Clement’s argument that by passing DOMA Congress was attempting to stay out of the issue of same-sex marriage.  “Congress did not stay out of it,”  Kaplan responded.  “Section 3 of DOMA is not staying out of it.  Section 3 of DOMA is stopping recognition by the Federal Government of couples who are already married, solely based on their sexual orientation, and what it’s doing is undermining, as you can see in the briefs of the State of New York and others, it’s undermining the policy decisions made by those States that have permitted gay couples to marry.”  Chief Justice Roberts again sought to get Kaplan to concede the political power of gay people in achieving change since DOMA was passed, but she resisted, stating, “I don’t believe that societal understanding  came strictly through political power; and I don’t think that gay people today have political power as that — this Court has used that term with — in connection with the heightened scrutiny analysis.”

In the immediate post-argument wave of media comment, there emerged a consensus that the Court was likely to rule, by a vote of at least 5-4, that Section 3 of DOMA violates the equal protection clause, after having concluded that it has jurisdiction in the case, but any consensus based on conclusions derived from the Justices’ questions and comments must be at best provisional.  Justice Kennedy’s remarks did not reflect the kind of indecision signaled by his participation in the Proposition 8 argument, probably because a decision striking down Section 3 seems a smaller step, and the equal protection violation seems so clear on its face.  Justice Breyer briefly raised the question whether there was a principled way to rule for the plaintiff in this case but not for the plaintiffs in the Proposition 8 case, but discussion of that did not go very far or deep.  It is a fair question, however, since some of the justifications articulated by members of Congress in 1996 for enacting DOMA sound much like the arguments Cooper was making in support of Proposition 8.  A decision holding that Section 3 does not even survive rationality review would be a useful precedent for those litigating for same-sex marriage in other states.  But, for now, the case is submitted and the process will continue behind closed doors until the Court renders its decision in June.

Obama Administration Files Amicus Brief in Opposition to Proposition 8

Posted on: March 1st, 2013 by Art Leonard No Comments
On February 28, the Obama Administration weighed in on Hollingsworth v. Perry, No. 12-144, the pending challenging in the Supreme Court by the American Federation for Equal Rights (AFER) to California Proposition 8, by filing an amicus brief arguing that the Court should declare California’s constitutional provision limiting marriage to the union of a man and a woman to be unconstitutional under the 14th Amendment.    The government is the Petitioner in the companion case of United States v. Windsor, No. 12-307, contesting the constitutionality of Section 3 of the Defense of Marriage Act (DOMA), which implicates many of the same constitutional issues, but it was not certain that the government would file a brief in Hollingsworth, and there was much lobbying and gay media pressure for them to do so, as a logical extension of  President Obama’s celebrated “evolution” on same-sex marriage last spring and certain statements from his Inaugural Address in January and State of the Union message in February.

The government needs to identify its interests in filing an amicus brief in a case to which it is not a party.  Here the government articulates two interests.  First, the government wants to achieve a consistent resolution of the level of scrutiny to apply to sexual orientation discrimination claims, referencing the simultaneous consideration of Windsor, in which the government is arguing for heightened scrutiny.  The brief points out that the government has submitted amicus briefs in the past when the Supreme Court was considering what level of review to give to an equal protection claim in a case brought by private litigants against a state or local government, as the government has an interest in the resolution of that question because some of its own programs and policies might be affected by the outcome.  That is certainly true here.  A holding on heightened scrutiny could affect the constitutionality of any federal law or policy that subjects gay people to unequal treatment, by making those laws presumptively unconstitutional and putting the burden on the government to justify them by showing that they substantially advance an important governmental interest. 

The brief also notes as a government interest that many of the arguments made by the Proponents in support of Prop 8 have also been made in support of DOMA Sec. 3, and thus the government has an interest in consistent resolution of those issues as well, because the Court’s treatment of them would affect the outcome in both cases. 

On the merits, the brief basically replicates the argument from the government’s Windsor brief about why heightened scrutiny is appropriate (but does so more concisely, with references to the other brief), and counters arguments to the contrary from Charles Cooper’s brief for Proponents of Proposition 8.   After pointing out that California law provides all the state law rights of marriage to same-sex couples and that Prop 8 does not withdraw any of those rights, the brief states, “Particularly in those circumstances, the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest.  Proposition 8 thus violates equal protection.”

In other words, the brief, as an amicus brief in support of the AFER plaintiffs (Respondents in the Supreme Court), focuses on whether Prop 8 is constitutional, not more broadly on whether states can deny same-sex couples the right to marry.  It is not pitched in the weight of its argument as a Romer-style “withdrawal of rights” case, and so it differs in this respect from the brief filed by the City of San Francisco.   Instead, its focus is on why there is no rational basis for giving same-sex couples all the rights of marriage and then denying them marriage itself.  It is implying that the same argument could be made in all the other civil union/domestic partnership states; that resisting the next step to marriage violates Equal Protection after a jurisdiction has determined that same-sex couples should have all the rights and benefits in a state-sanctioned status similar to marriage.  This would justify the government in submitting similar amicus briefs in the pending Hawaii and Nevada marriage cases, where the district courts have granted summary judgment against the plaintiffs and the cases are on appeal to the 9th Circuit.  (Illinois is different, since the litigation there is pending in a state trial court under the state constitution, but the substantive legal arguments would be the same.)  The brief lists the other states with civil union laws on page 11.  After listing them, the brief says: “The designation of marriage, however, confers a special validation of the relationship between two individuals and conveys a message to society that domestic partnerships or civil unions cannot match.”  Thus, without citing the opinion, this brief is really channeling the argument accepted by the Connecticut Supreme Court in Kerrigan v. State, when it ruled that Connecticut civil unions violated state equal protection and the state had to open up marriage to same-sex couples to cure the violation.

This is not a brief that overtly advocates that same-sex couples have the right to marry as such.  Rather, it advocates that if a state has resolved the policy issues in favor of providing the rights, benefits and responsibilities of marriage to same-sex couples, it violates equal protection for the state to nonetheless deny same-sex couples the right to marry.  And, focusing, as a brief in an actual case should, on the circumstances of the parties in the case, it argues that these particular circumstances, with the vote to amend the state constitution to end same-sex marriages, violates equal protection, as none of the arguments that were advanced in support of Prop 8 when it was enacted would suffice under heightened scrutiny to justify such unequal treatment for same-sex couples.  When heightened scrutiny is the correct standard of review, the defenders of Prop 8 are theoretically limited to the justifications presented to the voters in 2008, not the various “new” arguments thought up by their attorneys for this lawsuit, but the government argues that those “new” arguments – particularly the “accidental procreation” nonsense – won’t suffice as even a rational basis for Prop 8, since Prop 8 does nothing to change existing California family law, under which same-sex domestic partners have all the parental rights and responsibilities of married couples, and has no logical effect on the problem of “accidental procreation” by heterosexuals.

The government brief points out, as other briefs filed in the case do, that in a heightened scrutiny equal protection case, the question for the Court is whether the defenders of Prop 8 have made valid arguments that would justify excluding same-sex couples from marrying, not whether the government might have some reason to encourage different-sex couples to channel their procreative activities within marriage.  There is no logical connection between the two.

This is a subtly constructed brief.  The arguments it makes could well support a challenge de novo against a state DOMA or the failure of a state to provide marriage (whether or not the state has adopted civil unions/domestic partnerships), by arguing against the constitutional salience of the justifications argued on behalf of Prop 8 (and Sec. 3 of federal DOMA), but here those arguments are summoned specifically to support a consistent approach to the government’s position in the DOMA case and to knock the props out from under Prop 8.

It is helpful to have this brief on file making these arguments, because although it is similar in many respects to the arguments in AFER’s brief and the City of San Francisco’s brief, it provides a plausible alternative analytical route for the Court to strike down Proposition 8 without immediately invalidating all state DOMA laws and constitutional amendments.  However, its analysis of the level of scrutiny issue and of the arguments usually made in support of denying marriage to same-sex couples seem to preordain the outcome in favor of same-sex marriage rights in a case presenting the broader argument.  If a majority of the Court agrees with AFER’s arguments, we could have same-sex marriage nationwide immediately, but that seems a less plausible outcome.  If the Court agrees with the government’s argument in this amicus brief, it would strike down Prop 8, perhaps in an opinion that would send a clear signal to the 9th Circuit to rule for same-sex marriage in the Hawaii and Nevada cases and to all lower federal courts on the likely outcome of federal constitutional challenges in states with civil union laws or perhaps even any state with a DOMA.  Perhaps the result would not be as sweeping as Lawrence v. Texas (2003) was in the context of sodomy laws, but it could potentially have the same impact, and could accelerate the trend towards enactment of marriage equality laws by state legislatures, where efforts are now pending in several states.  

Counsel of Record for the brief is Solicitor General Donald B. Verrilli, Jr.  Other Justice Department lawyers listed on the brief are Principal Deputy Assistant Attorney General Stuart F. Delery, Deputy S.G. Sri Srinivasan, Assistant to the S.G. Pratik A. Shah, and DOJ attorneys Michael Jay Singer, Helen L. Gilbert, and Jeffrey E. Sandberg.

New DOMA Briefs in Supreme Court Join the Issue on Merits and Jurisdiction

Posted on: February 25th, 2013 by Art Leonard No Comments

On February 21 and 22 the parties in United States v. Windsor, the pending challenge to Section 3 of the Defense of Marriage Act (DOMA), filed briefs in the Supreme Court in compliance with the expedited briefing schedule that the Court ordered shortly after granting the Solicitor General’s petition to hear the case.  The Justice Department (DOJ) filed two briefs, the first addressed to the merits (whether Section 3 violates the 5th Amendment’s equal protection requirement) and the second addressed to jurisdiction (whether the case presents the Court with a real ‘case or controversy’ and whether the Bipartisan Legal Advisory Group of the House of Representatives [BLAG] has constitutional “standing” to participate as a party).  BLAG and counsel for Edith Windsor filed briefs on the jurisdictional questions as well.  Still to come later in February are Windsor’s brief on the merits and amicus briefs in support of her position that Section 3 is unconstitutional.

Section 3 of DOMA provides that the federal government will recognize only different-sex marriages for all purposes of federal law.  It was enacted in 1996 in reaction to litigation brought by same-sex couples in Hawaii seeking the right to marry.  Section 2 of DOMA, not involved in this case, purports to relieve states from any obligation to accord “full faith and credit” to same-sex marriages performed in other states.

Edith Windsor filed suit challenging the constitutionality of Section 3 after the Internal Revenue Service (IRS) relied on that statute in refusing to refund $363,053 in federal estate taxes levied against the estate of Thea Spyer, Ms. Windsor’s late wife.  The women, New Yorkers, married in Canada in 2007 after being life partners for many decades.  Ms. Spyer died in 2009, after several New York intermediate appellate courts had ruled that same-sex marriages legally contracted in other jurisdictions would be recognized in New York.  The Internal Revenue Code exempts from estate taxes bequests to surviving spouses, and Ms. Spyer’s will left her estate to Ms. Windsor.

After Windsor, represented by Roberta Kaplan of Paul Weiss LLP and the American Civil Liberties Union LGBT Rights Project (ACLU), filed suit for a tax refund in federal court, the Justice Department, which had been defending the constitutionality of Section 3 in litigation in other courts subject to circuit authority holding that sexual orientation claims receive rational basis review, studied the issue anew because the 2nd Circuit, with jurisdiction over New York claims, had not taken a position.  DOJ concluded that sexual orientation claims merit heightened scrutiny, and that Section 3 could not survive such review.  The President ordered that the Executive Branch continue to enforce Section 3, although DOJ would no longer defend its constitutionality in court.  DOJ responded to Windsor’s case with a motion to dismiss, however, as representative of the government, while notifying congressional leaders that it would not be defending Section 3 on the merits. 

The Bipartisan Legal Advisory Group of the House of Representatives was convened by House Speaker John Boehner to respond to these developments, and by a party-line vote of 3-2 authorized the Counsel of the House of Representatives to seek to intervene in pending DOMA lawsuits to defend Section 3.  The House Counsel then hired former Solicitor General Paul Clement to represent BLAG in these cases.  BLAG has intervened as a defendant in numerous cases in addition to the Windsor case.  After granting BLAG’s motion to intervene, the district judge ruled in favor of Windsor, issuing a decision last spring finding Section 3 unconstitutional using a form of “intensified” rational basis review (similar to the approach taken by the 1st Circuit Court of Appeals in a Massachusetts case) and ordering the government to refund the tax payment.  Both DOJ and BLAG appealed to the 2nd Circuit.  Windsor also filed a petition with the Supreme Court during the summer, seeking review before judgment by the 2nd Circuit, and DOJ followed suit early in September with a similar petition. 

The 2nd Circuit rejected a suggestion to delay its argument pending a Supreme  Court ruling on these pending petitions, instead scheduling an expedited argument in September and issuing its decision affirming the district court before the Supreme Court had formally opened its October 2012 Term.  The 2nd Circuit went a step further than the district court, holding that sexual orientation discrimination claims merit heightened scrutiny, as DOJ had argued, and that Section 3 fails that test.

After the 2nd Circuit’s ruling, DOJ filed an additional brief with the Supreme Court urging that it review the 2nd Circuit’s decision.  The Supreme Court granted that petition on December 7, 2012.  A few weeks later, BLAG filed its own petition with the Court seeking review of the 2nd Circuit’s decision.  To date, the Court has not ruled on the petitions filed by Windsor and BLAG.

DOJ’s brief on the merits generated headlines as another major statement by the Obama Administration in support of same-sex marriage, but really broke little new ground legally, as it reiterated the arguments DOJ had made to the Court of Appeals concerning heightened scrutiny and the failure of BLAG to show that Section 3 met that standard.  As in its arguments to the 2nd Circuit, DOJ argued that Section 3 would survive judicial review under the traditionally deferential rationality test, but it conceded that under a more demanding form of rational basis review, Section 3 should also be held unconstitutional.  However, DOJ’s brief forcefully rejected BLAG’s arguments concerning the appropriate standard of review.

BLAG had argued in its merits brief filed in January against heightened scrutiny, claiming that gay people are now a politically powerful group that does not need special protection from the courts, citing the November 2012 electoral victories for same-sex marriage in Maine, Maryland and Washington State, and the increasing number of successful openly gay candidates for Congress.  BLAG suggested that the past history of anti-gay discrimination by the government and by society was no longer a justification for heightened scrutiny in light of changing attitudes, and urged that the Court allow the normal political process to determine policy questions about federal recognition of same-sex marriages.

DOJ rejected these arguments decisively.  “Gay and lesbian people have suffered a significant history of discrimination in this country,” said DOJ.  “No court to consider the question has concluded otherwise, and any other conclusion would be insupportable.”  The brief goes on to cite chapter and verse on discrimination in employment, immigration, hate crimes, child custody, police enforcement, and anti-gay voter referenda.  The brief observes that even BLAG concedes “that gay and lesbian people have endured discrimination in this county since the 1920s,” and that the paucity of earlier documentation “is likely attributable to the fact that gay and lesbian people, by and large, kept their sexual orientation hidden for fear of discrimination or persecution.”  On the issue of “political power,” DOJ distinguished between advances through litigation and through the ballot box, saying that BLAG’s focus on recent electoral victories “ignores the broader context, which overwhelmingly demonstrates the political challenges faced by the gay and lesbian minority,” pointing out particularly the epidemic of mini-DOMAs enacted by states as statutes or constitutional amendments since the passage of federal DOMA in 1996 and most recently in 2012 in North Carolina.  BLAG had argued that the November ballot victories should be deemed “outcome determinative” on the question of heightened scrutiny, but DOJ pointed out that the Court continues to apply strict or heightened scrutiny in cases involving race and sex, despite the political advances of people of color and women, in light of historic discrimination.  

As to the justifications offered for Section 3 by BLAG, DOJ pointed out that under heightened scrutiny new arguments long post-dating the 1996 enactment were irrelevant, the issue being the reasons why Congress acted when it passed the law.  Even before DOJ changed its position on the constitutionality of DOMA, it had publicly rejected the reasons cited in the legislative history of 1996 in its filings in the Massachusetts case.  Responding to BLAG’s argument that the Court should allow the democratic process to run its course and not cut short the debate by constitutionalizing the issue, DOJ wrote, “That approach would be very well taken in most circumstances.  This is, however, the rare case in which deference to the democratic process must give way to the fundamental constitutional command of equal treatment under law.  Section 3 of DOMA targets the many gay and lesbian people legally married under state law for a harsh form of discrimination that bears no relation to their ability to contribute to society.  It is abundantly clear that this discrimination does not substantially advance an interest in protecting marriage, or any other important interest.  The statute simply cannot be reconciled with the Fifth Amendment’s guarantee of equal protection.  The Constitution therefore requires that Section 3 be invalidated.”

In its separate brief on jurisdiction, DOJ responded to two questions posed by the Court: whether DOJ’s agreement with Windsor and the 2nd Circuit that Section 3 is unconstitutional deprives the Court of jurisdiction for lack of a real “controversy” and whether BLAG itself has standing to seek review of the lower court’s decision.  DOJ strongly argued that it has presented a real controversy to the Court, pointing out that the government is continuing to enforce Section 3 pending a definitive ruling by the Court, and thus it has refused to comply with the district court’s order to issue a tax refund to Windsor.  Even though DOJ agrees on the merits that Section 3 is unconstitutional, DOJ argues that the government remains an “aggrieved party” in this case because it is subject to the district court’s order and will continue to enforce Section 3 and be faced by additional lawsuits until the matter is resolved.  Thus, it argues, the parties have a “continuing controversy.”  Furthermore, it notes that the statute describing the Court’s jurisdiction states that “any party” can petition the Court for review of a lower court decision.  The Court has discretion to reject such a petition if it determines that it is being asked for an advisory opinion, but DOJ argues that there is an important live controversy about the constitutionality of Section 3 that needs to be resolved on a national basis.

On the other hand, DOJ argues that BLAG does not by itself have standing under the Constitution to represent the interests of the United States in this case, asserting that neither BLAG, its members, nor the House of Representatives as a whole has suffered any particularized injury that would confer standing, and that under the separation of powers only the Executive Branch through DOJ is authorized to represent the United States in litigation.  DOJ distinguished the main case upon which BLAG relies, Chadha, which involved the constitutionality of a statute giving either house of Congress the right to veto a decision by the Attorney General not to deport an alien.  In that case, the Supreme Court allowed both houses of Congress to intervene as parties to defend their prerogatives under that statute.  This case is different, argues DOJ, because no particular prerogative of Congress is at stake, and the Supreme Court has never recognized congressional standing in general to defend the constitutionality of a statute on an argument that Congress always has an interest in defending the statutes it has enacted.  (BLAG argues, in opposition to this position, that a decision on the merits that sexual orientation claims merit heightened scrutiny, would impose a permanent restriction on the ability of the House to pass legislation, thus giving it a particularized interest.  This argument is absurd, as it would confer standing on the House to bring to the Court any case in which a lower court upholds a due process or equal protection claim against a federal statute.)

In her brief on jurisdiction, a collaboration of the ACLU, the NY Civil Liberties Union, Roberta Kaplan and attorneys from Paul Weiss, and Pamela Karlan and Jeffrey Fisher and the Stanford Law School Supreme Court Litigation Clinic, Windsor expands on this point with particularity.  It seems that under federal statutes a citizen seeking a tax refund must sue the United States government, so, she argues, the United States, as represented by DOJ, is a necessary party in this case.  If the case itself is properly before the Court, the government must be a party before the Court, or else there is no statutory authority to order a tax refund.   And, since the government has refused to refund the money, there is a genuine dispute between Windsor and the government.  Windsor also argued that because her cause of action is against the U.S. government, the question whether BLAG has independent standing to bring this case before the Court is irrelevant to the question of the Court’s jurisdiction.

BLAG, as one might have anticipated, stakes out quite a different position in its new brief on jurisdiction.  Its case is built in part on a measure enacted by the House of Representatives in January 2013, a month after the Court granted review in this case, by which the House expressly authorized BLAG to “continue” to represent its interest in defending Section 3 of DOMA in this and other cases.  BLAG’s brief stresses the word “continue” and cites a history going back several decades of  BLAG authorizing intervention in pending litigation on behalf of the House of Representatives, and courts (including the Supreme Court) allowing it to participate.  BLAG argues in line with the arguments filed in January by Prof. Vicki Jackson of Harvard, who was appointed by the Court to present the case against jurisdiction, that DOJ does not have standing in the case because its view prevailed in the 2nd Circuit.  BLAG disputes DOJ’s assertion that the government is an “aggrieved party,” arguing that the government got exactly what it was seeking from the lower court, and quoting prior Supreme Court decisions asserting that a party that got what it wanted from a lower court could not bring its case to the Supreme Court.

But BLAG does not argue that the Court should not decide the case.  First, it contends that because it has standing it can bring the issue of Section 3’s constitutionality before the Court for resolution.  Thus, BLAG argues that the Court should dismiss DOJ’s petition for certiorari as improperly granted, but should at the same time grant the petition that BLAG filed later in December.  “This Court can grant the House’s petition in No. 12-785 and issue its merits decision in that case without need for further briefing and argument,” contends BLAG, since the questions presented in both petitions are the same and all parties will be arguing their cases to the Court on March 26.  While this would be unusual, it does present a plausible roadmap for the Court to rule on the merits if it decides that DOJ’s agreement with the lower court’s decision would deprive the government, as represented by DOJ, of “appellate standing” to bring the case to the Court.

Thus, all the parties reject Prof. Jackson’s argument that because the Court lacks jurisdiction in this case, it should dismiss the petition and leave matters to further development in the lower courts.  Nobody agrees that it would be preferable to let the issue of Section 3’s constitutionality play out without a definitive resolution for several years.   All parties agree that the result would be potentially thousands of individual lawsuits burdening the federal courts until at least one case generates an adverse court of appeals decision that can be appealed buy the disappointed plaintiff.  And each party argues that somehow an argument can be constructed that the Court has proper jurisdiction of the case so that it can rule on the merits.  Nobody wants a delay in determining whether Section 3 is constitutional.