New York Law School

Art Leonard Observations

Posts Tagged ‘DOMA’

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 Invalidates Section 3 of DOMA but Avoids Ruling on Proposition 8

Posted on: June 26th, 2013 by Art Leonard 2 Comments

  [First draft of history.  This posting was written within the first few hours after the Supreme Court’s release of its decisions this morning in US v. Windsor and Hollingsworth v. Perry.  I’ll certainly have second thoughts and third thoughts, etc…. but this is the first draft of history.]         

In a pair of 5-4 rulings released on June 26, the United States Supreme Court held that Section 3 of the Defense of Marriage Act (DOMA) violates the 5th Amendment of the Bill of Rights, but that the Court did not have jurisdiction to decide whether California Proposition 8 violates the 14th Amendment, because the initiative proponents of that measure lack federal constitutional standing to appeal the trial court’s decision holding it unconstitutional.   There is a 25-day period during which Petitioners can seek rehearing, after which the Court’s mandate in the Prop 8 case will go to the 9th Circuit, which then must issue an order dismissing the appeal and lifting the stay on Judge Vaughan Walker’s Order.  At that point, later in July or early in August, at least theoretically, same-sex marriages will become available throughout California, although differences of opinion about the scope and effect of Walker’s Order may result in litigation delaying that outcome.

             Justice Anthony M. Kennedy, Jr., wrote for the Court in United States v. Edie Windsor, the DOMA case, producing a somewhat typical Kennedy opinion that obscures the doctrinal basis of the ruling and will leave commentators and lower courts guessing as to its effect in subsequent cases.  Kennedy’s opinion referred to liberty protected by the Due Process clause, federalism concerns in light of the traditional authority of the states to decide who can marry, and the equal protection requirements that the Court has found to be part of the 5th Amendment’s Due Process Clause.  In some respects, his opinion evoked his 1996 opinion for the Court in Romer v. Evans, which rested on the idea that an enactment whose clear purpose  and effect are to treat some people adversely, creating a sort of second-class citizenship, is facially unconstitutional without much need for further analysis.  At oral argument, Justice Ruth Bader Ginsburg described state marriage without federal benefits as “skim milk marriage,” but Kennedy did not adopt that nomenclature, instead referring to 2nd class marriage.

             As usual with Kennedy, his opinion avoids the technical terminology of constitutional analysis that many commentators customarily use in describing the process of judicial review, so the case will not be easy to classify in terms of such concepts as “strict scrutiny,” “heightened scrutiny,” “suspect classifications,” or “rational basis.”  The Court thus avoided taking a position as between the trial court, which expressly employed the rational basis analysis to strike down Section 3, and the 2nd Circuit, which found “heightened scrutiny” should apply to sexual orientation discrimination cases and opined, in passing, that Section 3 would survive a less demanding rational basis review.  This was probably at least a small disappointment for Windsor’s counsel, Roberta Kaplan of Paul Weiss LLP, and the LGBT Rights Project at the ACLU, who had hoped that a “heightened scrutiny” ruling by the Court could be used in other cases, especially pending cases challenging state bans on same-sex marriage in other parts of the country. 

 As usual when dissenting from a Kennedy gay rights opinion, Justice Antonin Scalia’s dissent expressed some relief that the Court had not used heightened scrutiny to strike down Section 3, but he then expressed puzzlement about the basis for the ruling.  After summarizing and criticizing Kennedy’s analysis, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court’s non-specific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”

 Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined Kennedy’s decision and did not write separately. 

             President Barack Obama promptly issued a statement applauding the Court’s ruling and said he had directed Attorney General Eric Holder “to work with other members of my Cabinet to review all relevant federal statutes to ensure this decision, including its implications for Federal benefits and obligations, is implemented swiftly and smoothly.”  This is especially good news for bi-national married same-sex couples, whose marriages should be recognized as equal to those of different-sex couples, and it will obviate any need for a “gay marriage” amendment to be part of the pending immigration reform legislation in Congress.  Those few federal statutes that contain specialized marriage definitions for particular policy purposes should now be construed to treat lawful same-sex marriages the same as lawful different-sex marriages.

             However, as Justice Scalia pointed out in his acerbic dissent, the Court’s opinion is  obscure on one very important question: whether lawfully-married same-sex couples who live, work, or travel in states that don’t recognize same-sex marriages will still be recognized as married for federal purposes should the question arise when they are not in the state where they married (or another state that recognizes the marriage).  Kennedy ended his opinion with a cryptic statement, “This opinion and its holding are confined to those lawful marriages,” which follows a passage criticizing DOMA because it “singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty” and “to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”  This relates to the federalism aspect of Kennedy’s decision, under which a state may, presumably, decide not to perform or recognize same-sex marriages unless, of course, Kennedy’s due process and equal protection concerns would override the state’s reservations in this regard.

 There were actually three dissenting opinions, by Chief Justice John R. Roberts, Jr., Justice Scalia (joined by Justice Clarence Thomas, and, in part, by the Chief Justice), and Justice Samuel Alito (joined in part by Justice Thomas).  The Chief Justice and Justice Scalia argued that the Court did not have jurisdiction to decide the DOMA case, because the Justice Department agreed with the rulings by the trial court and the 2nd Circuit Court of Appeals,  so the parties before the Court were not “adverse” on the merits, lacking a true “case or controversy” as required by the Constitution.   Roberts and Scalia both suggested that it was not appropriate for the government to ask the Supreme Court to affirm a lower court decision with which the government agrees.  

 The Chief Justice’s dissent stressed the “federalism” aspects of Kennedy’s opinion, which would possibly lessen its significance for pending challenges to state bans on same-sex marriage.   Roberts emphasized that Kennedy’s opinion purported to take no position on the question whether same-sex couples have a right to marry under the 14th Amendment.  He said that “the disclaimer is a logical and necessary consequence of the argument that the majority has chosen to adopt.  The dominant theme of the majority opinion is that the Federal Government’s intrusion in an area ‘central to state domestic relations law applicable to its residents and citizens’ is sufficiently ‘unusual’ to set off alarm bells.  I think the majority goes off course, as I have said, but it is undeniable that its judgment is based on federalism.”  As such, Roberts would argue, it has no relevance to disputes over the right to marry.

   Justice Scalia also disagreed with Justice Kennedy on the merits of the case, but the Chief Justice did not join that part of his colorfully-worded opinion.  Scalia discounted Kennedy’s disclaimer that the Court was not deciding whether same-sex couples have a constitutional right to marry, predicting that lower courts would rely upon his opinion to strike down state restrictions on same-sex marriage.  In fact, Justice Scalia took the unusual step of demonstrating how a lower court could appropriate paragraphs from Kennedy’s opinion, change a few of the words, and produce a result requiring a state to let same-sex couples marry.  Scalia’s dissents in gay rights cases are usually packed with colorful rhetoric, and this was no exception, but this is the first time he actually shows lower courts how to accomplish the terrible results that he forecasts will occur as a result of the Court’s opinion. (He did forecast, in his Lawrence dissent exactly ten years ago, that the ruling striking down sodomy laws would lead to same-sex marriage.)

  Justice Alito, by contrast, argued in his dissent that the intervention of the Bipartisan Legal Advisory Group of the House of Representatives (BLAG) as defenders of DOMA took care of the “case or controversy” problem, suggesting that there is necessarily a role for the courts to play when both the plaintiff and the government agree that a statute is unconstitutional.  He suggested that in such a case, Congress does have a legitimate interest in defending the statute, accepting the argument advanced by BLAG that the invalidation of a statute is a direct harm to Congress’s legislative authority.  Alito disagreed with Kennedy on the merits of the constitutional claim, asserting that the question whether the federal government must recognize same-sex marriages was a political question not suitable for resolution by the Court.  Alito said that the Constitution has nothing to say about same-sex marriage one way or the other.  In his view, whether same-sex couples can marry should be left to individual states to decide through their political processes.

 Chief Justice Roberts wrote for the Court in Hollingsworth v. Perry, the Prop 8 case.  He found that the initiative proponents did not have standing to appeal District Judge Vaughan Walker’s ruling that Prop 8 violated the 14th Amendment, because the proponents had no personal tangible stake in the outcome.  Justices Scalia, Ginsburg, Breyer and Kagan joined the Court’s opinion.  Justice Kennedy wrote a dissent joined by Justices Thomas, Alito, and Sotomayor.  Pundits will undoubtedly tie themselves in knots trying to figure out why three of the Democratic appointees joined Scalia and the Chief in the majority while Justice Sotomayor joined Kennedy and the Court’s two most conservative members, Alito and Thomas, in the dissent, especially since all four Democratic appointees joined Kennedy’s decision on the merits in the Windsor case.  However, since neither Roberts nor Kennedy addressed the merits in their opinion, it is possible that the other justices did not see this as a particularly ideological case in the end — there is, really, no necessary liberal or conservative position on the question whether a state constitution can be construed to confer Title III standing on initiative proponents. Kennedy argues in dissent that it can.

             Although the immediate results of both decisions are clear, their longer-term effects are not.  The full meaning of a Supreme Court opinion cannot be determined on the day it is issued, but will depend on the responses of government officials, legislators, and lower courts, as well as private sector actors.

 Section 3 of DOMA is gone, but that does not necessarily mean that all the barriers to full equality in federal rights are necessarily eliminated or will all disappear overnight.  The President’s prompt statement suggests that by the time the Court issues its mandate in the Windsor case towards the end of July, there should be some guidance emanating from the Justice Department so that all federal agencies are on the same page concerning treatment of legally-married same-sex couples.  It would be particularly helpful if this guidance addressed the issue of lawfully married couples who reside in states that don’t recognize same-sex marriages.  The pending Respect for Marriage bill in Congress would mandate federal recognition for those marriages regardless of where the couple happens to live or be visiting, and the Administration had stated support for that legislation.  It is unlikely that Congress, politically fractured at present, would take any action were the Administration to adopt this rule administratively.

 Justice Kennedy pointed out in his opinion that studies have identified more than a thousand federal statutory or regulatory provisions for which marital status is relevant.  Most of those provisions contain no express definition of marriage, while some include or refer to descriptive language relevant to the particular policy of the statute or regulation.  Presumably, after the Windsor ruling goes into effect, any such provision that would not on its face include same-sex marriages would have to be interpreted consistently with the Court’s ruling to meet constitutional muster.

 As noted above, the Court’s ruling on the Proposition 8 case is not a ruling on the merits that the California constitutional amendment is unconstitutional.  Neither Roberts’ opinion for the Court nor Kennedy’s dissent takes any position on the merits of the equal protection theory adopted by the 9th Circuit or the equal protection and due process theories endorsed by Judge Walker in the trial court.  Once Walker’s Order goes into effect after the 9th Circuit lifts its stay in response to the Supreme Court’s mandate to dismiss the appeal on jurisdictional grounds, battle may be enjoined around the state.  The original defendants in the lawsuit, statewide officials and the county clerks in Alameda and Los Angeles Counties, all sued in their official capacities so that changes in those offices since the case was filed in 2009 would not make any difference, would clearly be bound by Judge Walker’s Order.  Whether clerks in other counties would be bound, or would be subject to direction from state officials to comply, are questions yet to be settled.  Governor Brown promptly announced his understanding that Judge Walker’s Order would have statewide effect, and a letter was sent to county clerks stating that they would have to comply when the stay is lifted.  But the determined opponents of same-sex marriage signaled on June 26 that they will do everything they can to try to block its widespread implementation.




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.

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.

Will the Supreme Court Actually Decide the DOMA Case?

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

When the Supreme Court granted the Solicitor General’s petition for certiorari on December 7, 2012, in United States v. Edith Windsor, posing the question whether Section 3 of the Defense of Marriage Act violates the equal protection rights of married same-sex couples by denying them federal recognition, the Court added two questions: Whether the government’s “agreement with the court below that DOMA is unconstitutional deprives [the Supreme Court] of jurisdiction to decide this case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which intervened at the trial court to argue in favor of the constitutionality of Section 3, has “Article III standing” to participate as a party in the case.

Presuming that neither Edie Windsor, the government nor BLAG would argue to the Court that it lacks jurisdiction over their case, the Court appointed Professor Vicki Jackson of Harvard Law School as a “friend of the Court” with directions to brief and argue that the Court lacks jurisdiction. Jackson filed her brief, written with attorneys from the law firm of Akin Gump Strauss Hauer & Feld LLP, on January 24, making the argument requested by the Court. Her brief has been posted by the clerk of the Court on the page devoted to the same-sex marriage cases on the Court’s website, which can be reached by clicking on the “Docket” box on the left-hand side of the Court’s homepage.

The jurisdictional questions are complicated, and probably lie outside of the consciousness of most people who are not federal litigators or legal academics, but they raise a serious possibility that the Court will not actually decide in this case whether DOMA Section 3 is unconstitutional. This is because the Supreme Court’s jurisdiction is circumscribed by the Constitution and by a body of procedural law developed by the Court over more than two centuries. In Article III, the Constitution says that the “judicial power” of the United States extends to “cases” and “controversies,” primarily involving federal law issues or disputes between parties from different states. The Court has interpreted this reference to “cases” and “controversies” to be a limitation on the jurisdiction of the federal courts, so that they cannot issue “advisory opinions” and can only rule on issues that are disputed between parties who have something personally at stake in the controversy.

In U.S. v. Windsor, Edie Windsor, as executor of her wife’s estate, had to pay out $363,053 in federal estate taxes that would not have been owed had the government recognized her Canadian same-sex marriage. She has a real stake in the outcome of this lawsuit, so her lawsuit presented a real “controversy” to the U.S. District Court for the Southern District of New York, in Manhattan.

BLAG has argued that it is not clear that New York would have recognized the marriage when Thea Spyer died in 2009, because the New York Court of Appeals had not ruled on the marriage recognition question and New York did not pass its Marriage Equality Law until two years later. If the marriage was not recognized by New York, there would be no basis to argue that it must be recognized by the federal government, and Windsor’s case would be dismissed for failure to assert a valid legal claim. The lower courts resolved that question against BLAG, however, pointing to numerous signs that by 2009 such a marriage would be recognized in New York, including rulings by intermediate appellate courts (the first, coincidentally, involving a Canadian same-sex marriage) and pronouncements by state officials, including the attorney general. BLAG has raised this issue again in a footnote to the brief it filed on January 22.

The more pressing problem for the Court’s jurisdiction is that while preparing to respond to Windsor’s lawsuit, the Justice Department reconsidered its position on the constitutionality of Section 3, deciding that it was unconstitutional. With President Obama’s approval, the Department adopted a policy of not defending Section 3 in court, even though the Executive Branch would continue to enforce it until it was either repealed or declared unconstitutional by the Supreme Court. Attorney General Eric Holder informed Congress of this development by a letter to House Speaker John Boehner, who convened the Bipartisan Legal Advisory Group of the House of Representatives to consider whether to take action. (The Senate, controlled by the Democrats, expressed no interest in participating in this.) Boehner’s Group took a party-line vote of 3-2 to authorize the Counsel to the House to hire an attorney to defend Section 3. They hired Paul Clement, who was Solicitor General during George W. Bush’s second term. Clement filed a motion on behalf of BLAG to intervene as a party, which was granted by the trial court. Clement opposed Windsor’s motion for summary judgment, the Justice Department argued in favor of Windsor’s motion, and the district court granted Windsor’s motion, thus giving the Justice Department the result it was seeking, a judicial declaration that Section 3 is unconstitutional.

The Justice Department filed an appeal to the 2nd Circuit Court of Appeals, purportedly to ensure that the appeals court would have jurisdiction over BLAG’s appeal, since there were doubts about BLAG’s standing to appeal on its own, discussed below. In briefs and at oral argument, the Justice Department argued that the 2nd Circuit should affirm the district court’s ruling, which it did. But even before the 2nd Circuit ruled, both Windsor and the Solicitor General had filed petitions asking the Supreme Court to review the case, although the district court had ruled in their favor. They argued that the question whether Section 3 was unconstitutional needed a definitive answer from the highest court, having already been declared unconstitutional in another case by the 1st Circuit Court of Appeals in Boston. After the 2nd Circuit affirmed the district court, the Solicitor General filed an additional statement with the Supreme Court, arguing that this case, rather than the case from the 1st Circuit decided earlier in 2012, would make the best vehicle for ruling on the constitutionality of Section 3. On December 7, the Court granted the Solicitor General’s petition (but not Windsor’s petition), adding the question about jurisdiction.

Prof. Jackson’s brief argues that the Solicitor General’s petition does not present the Court with a real “controversy,” as that term has been defined by the Court’s prior decisions, because the government does not disagree with the rulings by the 2nd Circuit and the district court finding Section 3 unconstitutional. The government’s position is not adverse to Windsor’s position; there is no real dispute between them about the unconstitutionality of Section 3. In effect, the government is asking the Court to affirm the lower court’s ruling.

There is a dispute about the outcome – and a real case or controversy for the Court to decide – if there is an adverse party. That raises the question of Paul Clement representing BLAG. If BLAG has “standing” as a party, it can provide the controversy by arguing that Section 3 is constitutional. But is BLAG a proper party to argue for reversal of the 2nd Circuit’s ruling?

The Supreme Court has ruled in the past that only an individual or entity with “standing” can bring a lawsuit or appeal a court’s decision. A party has standing if they have a personal stake in the outcome of the matter that is distinct from the general interest that any citizen has in the correct interpretation of the law. Windsor has a $363,053 stake in the matter, since she had to fork over the money. The government always has a stake in the question whether a statute is constitutional, so nobody is questioning the standing of the government, as represented in the Supreme Court by the Solicitor General. But BLAG does not represent the government. Professor Jackson points out that when it sought to intervene in the case, BLAG did not even officially represent the House of Representatives, much less Congress as a whole, as there was no congressional resolution authorizing its action. BLAG’s interest in the case is not particularized in the way Windsor’s interest is. None of the five members of BLAG – the Speaker of the House, the majority and minority leaders and the majority and minority whips – has any individual stake in the outcome. Members of Congress may have a generalized interest in whether a statute that they passed is constitutional, but not an individual, particularized interest.

Professor Jackson devotes much attention in her brief to distinguishing a case where lawyers for Congress were allowed to intervene as parties: Chadha. The case involved a provision of the immigration law that allowed a single house of Congress to vote to overrule a decision by the Justice Department concerning whether to deport a non-citizen from the United States. Such a vote had been taken in the case of Mr. Chadha, but a lower court found this provision of the law to be unconstitutional as a breach of separation of powers required by the Constitution. The Supreme Court, agreeing that the provision was unconstitutional, said in its opinion that Congress had standing to intervene, because the challenged statute involved a question of whether Congress could include in a statute a provision giving a single house of Congress power to override an executive branch decision. Congress as a body had a particularized interest in that question. Both houses of Congress passed resolutions authorizing the retention of a lawyer to intervene on their behalf.

This case is different. Neither house of Congress voted to authorize intervention in this case on behalf of Congress. The institutional prerogatives of Congress are not directly at stake in the question whether Section 3 of DOMA violates the equal protection requirements of the 5th Amendment. While members of Congress might make their views known to the Court through an amicus brief, neither Congress as a whole, a single house of Congress, nor a small committee of members such as BLAG, would have “standing” under the Court’s precedents.

If BLAG does not have standing as a party, then there is no party properly before the Court in this case seeking a reversal of the 2nd Circuit’s decision, so there is no true “case” or “controversy” as those terms are defined by the Court in its past decisions, which would mean that “the judicial power” of the United States no longer extends to this case before the Supreme Court, or so Professor Jackson strongly argues in her brief.

What if the Court agrees with Professor Jackson? At least it would have to dismiss the writ of certiorari for lack of jurisdiction. What would that mean for the 2nd Circuit’s ruling? Professor Jackson suggests that the 2nd Circuit might still have had jurisdiction to hear the appeal, based on a variety of arguments, but it is possible that its jurisdiction would also be found lacking, resulting in vacating its ruling. There is no doubt for Professor Jackson that the district court had jurisdiction, because Edie Windsor was suing for a tax refund and the Internal Revenue Service would not pay her unless ordered to do so by a court, so there was a real case or controversy at that level.

But if the Supreme Court agrees with Professor Jackson’s argument, the practical result is that for the remainder of the Obama Administration, assuming that the Justice Department does not revert to defending DOMA, the only way a constitutional challenge can get to the Supreme Court would be for a federal court of appeals to rule that Section 3 is constitutional, thus putting the plaintiff in the role of a petitioner seeking a reversal of the court of appeals, presenting a real controversy for the Supreme Court to resolve. In the meantime, the question of Section 3’s constitutionality would continue to be litigated in various courts, and Prof. Jackson suggests that if all the circuit courts of appeals come to agree that it is unconstitutional, a consensus could be reached without the participation of the Supreme Court and the executive branch could stop enforcing the statute. But that might take many years.

When the Court granted certiorari in this case and added the jurisdictional questions, I joked with a few people that perhaps the only way to get the Supreme Court to rule on DOMA would be to lose the case in the court of appeals. Prof. Jackson reaches the same conclusion, stating as much on page 38 of her brief. The parties in the case will file briefs responding to Prof. Jackson’s arguments late in February, and the Court will hear arguments in this case during the last week of March, with a decision expected by the end of June.

Merits Briefs in Supreme Court Marriage Cases Make Heavy Federalism Pitch

Posted on: January 24th, 2013 by Art Leonard No Comments

On January 22, attorneys defending against constitutional challenges to California Proposition 8 and Section 3 of the federal Defense of Marriage Act filed their briefs on the merits with the United States Supreme Court. Links to the briefs can be found on the Supreme Court’s website: click on the Docket box on the left side of the site and there is a link to the special page set up for these cases (Hollingsworth v. Perry; United States v. Windsor).
Both briefs struck me as extremely well written and well argued, in light of the enactments that the attorneys had to defend in these cases. In Hollingsworth v. Perry, the proponents of Proposition 8 – which inserted into the California Constitution a provision that only a marriage between one man and one woman would be valid or recognized in California – are appealing a ruling by the 9th Circuit Court of Appeals that the enactment of Proposition 8 violated the 14th Amendment’s Equal Protection Clause by withdrawing from same-sex couples, without any rational basis, a right to marry that had previously been recognized by the California Supreme Court. Their counsel of record is Charles Cooper, a leading conservative appellate advocate who served in the Reagan Administration. In United States v. Windsor, a majority of the Bipartisan Legal Advisory Group of the House of Representatives argues that Congress did not violate the equal protection requirements of the 5th Amendment in 1996 when it adopted Section 3 of the Defense of Marriage Act, which provides that for all purposes of federal law only different-sex marriages will be recognized. Their counsel of record is Paul Clement, who was Solicitor General of the United States, representing the government in the Supreme Court, during George W. Bush’s second term. (In an interesting irony, co-counsel for the Respondents in the Prop 8 case is Ted Olson, who was Solicitor General during George W. Bush’s first term.)
Hollingsworth and his co-petitioners were the people who formed, an organization that proposed the California initiative measure (anticipating that the California Supreme Court might rule in favor of same-sex marriage in a then-pending case), secured the signatures to put it on the ballot, and coordinated the campaign for its enactment. When the American Foundation for Equal Rights filed suit challenging the measure in 2009, they sued the governor and other state officials, but none of those defendants was willing to argue in support of Proposition 8, so the district court allowed the Hollingsworth group to intervene as defendants. They lost, as District Judge Walker found that same-sex couples have a constitutional right to marry. The 9th Circuit affirmed Judge Walker’s ruling that Proposition 8 was unconstitutional, but on the purportedly narrower ground that California’s voters had no rational basis to rescind the right to marry. A subsidiary issue in the case was whether the appellants had constitutional standing to bring the appeal, inasmuch as the named defendants in the case – the governor and other state officials – declined to appeal.
In its order granting the petition for review, the Supreme Court revived the standing issue, so the questions before the Court are two: Does the 14th Amendment prevent California from from defining marriage as solely between a man and a woman, and do the proponents of Proposition 8 have proper standing to appeal the district court’s ruling? The January 22 brief tackles both questions.
While the case was pending before the 9th Circuit, that court asked the California Supreme Court for an advisory opinion on the question whether initiative proponents are authorized under California law to represent the state’s interest in defending its constitutional provisions against a federal court challenge. The California Supreme Court answered that question affirmatively, leading the 9th Circuit to find the standing requirement to be met. The brief argues in support of the 9th Circuit’s conclusion on standing, pointing out that the Supreme Court has in the past recognized the right of a state to determine who, apart from state officials such as the Attorney General, is authorized to represent the state’s interest in a case where the state does not itself undertake such representation. Of course, the California Supreme Court’s opinion only dealt with California law. The question whether the Proponents of Proposition 8 have appellate standing in federal court is a matter of federal law, and it is likely that the American Foundation for Equal Rights, representing the challengers of Proposition 8, will have strong counter-arguments to make when their brief is filed next month.
Moving on to the main question, the brief pitches the case as being about federalism – the division of authority between the state governments and the federal government. Traditionally, the question of who could marry has been considered a question of state law and, as the brief argues, is a policy question that has traditionally been determined through the legislative process. California’s constitution allows the people to legislate directly by initiative, both to enact statutes and to amend the state constitution. An initiative to ban same-sex marriage by statute was actually passed in California more than a decade ago, and that statute was declared unconstitutional under the state constitution by the California Supreme Court in 2008, leading to the period of same-sex marriages in California. Proposition 8 countered that ruling by enacting a constitutional amendment. The brief argues that this illustrates the democratic process at work, and argues that the federal courts should not interfere with this process by recognizing a federal constitutional right to same-sex marriage. The brief points out that if the Court rejects the challenge to Proposition 8, gay rights groups in California have already indicated that they will try to put an initiative on the ballot to repeal the Prop 8 amendment, a further example of the political process at work.

But they don’t rest only on the federalism point. They also argue, as they did to the 9th Circuit, that California has a rational basis for treating same-sex and different-sex couples differently. Indeed, they argue – as the brief filed in the DOMA Section 3 case also argues, that because of the procreative capacities of different-sex couples and the lack of direct procreative capacities of same-sex couples, these couples are not “similarly situated,” and thus present no equal protection issue from differential treatment. They argue that the equal protection clause is only implicated if “similarly situated” people are treated differently, citing prior Supreme Court cases as authority.
Even if the Court finds that there is an equal protection issue, they argue, it would be rational for California to distinguish between different-sex and same-sex couples, in light of the long history of marriage as exclusively a heterosexual institution. They repeat the “channeling procreation” argument that proved a winner for opponents of same-sex marriage in some of the other state supreme courts, including New York, Maryland, and Washington. Ironically, in each of those states where the highest court rejected same-sex marriage claims, the legislatures ultimately came around to enacting marriage equality laws, and in Maryland and Washington, those laws were ratified at the ballot box this past November. These outcomes would be cited by the Proponents as an example of why the Supreme Court should abstain here and allow the political process to work.
They are certainly cited by Paul Clement in his brief for the House Committee in the DOMA case. As in the Prop 8 case, the defenders of DOMA have adopted federalism as their main argument. They contend that Section 3 of DOMA was a rational response by Congress to the unfolding situation in the mid-1990s after the Hawaii Supreme Court ruled in 1993 that same-sex couples might have a right to marry under the Hawaii constitution. DOMA was passed just as the Hawaii case was going to trial. Some commentators were suggesting that if the Hawaii courts ruled for same-sex marriage, same-sex couples from around the U.S. could go to Hawaii, marry, and demand recognition of their marriages from their home states and from the federal government. The issue became embroiled with the 1996 federal elections, as potential presidential and congressional candidates rushed to take positions against same-sex marriage, as public opinions polls showed overwhelming opposition to same-sex marriage by the public. Congress’s response in DOMA was that states would not be required under federal law to recognize same-sex marriages contracted in other states, and that the federal government would not recognize them for any purpose.
The brief filed on January 22 argues that this was a rational, tempered response to the situation based on federalism concerns, under which the states as sovereign bodies would retain control over the definition of marriage within their borders and the federal government could maintain national uniformity for the application of federal law by adopting the traditional definition of marriage then in effect in every state. The brief argues that the Constitution does not take any position on the definition of marriage, leaving states free to define it however they like for purposes of state law and leaving the federal government to define it for federal purposes. Customarily the federal government has treated as married people who are lawfully married under the laws of their state, but the brief argues that there is no constitutional requirement for this, and that Congress has at times adopted a particular definition of marriage, most notably in some provisions of the tax code. The brief contends that putting the traditional different-sex definition of marriage into federal law was consistent with Congress’s understanding of what it was doing when it passed the hundreds of different statutes that take marital status into account for purposes of federal benefits, rights, and entitlements, and that Congress could rationally anticipate that if some states adopted same-sex marriage, the lack of a uniform federal definition might lead to administrative confusion, inequities, and uncertainties, as well as creating overnight new classes of beneficiaries for federal benefits that could impost significant costs.
The brief also directly takes on the 2nd Circuit’s ruling that DOMA Section 3 should be reviewed under the “heightened scrutiny” standard, which would put a higher burden of justification on the government in defending the law. Making essentially the same argument that Cooper made in the Prop 8 brief, Clement argues that same-sex and different-sex couples are not similarly situated for purposes of an equal protection analysis, and that Section 3 does not directly discriminate on the basis of sexual orientation, although he acknowledges that Section 3 adversely affects gay people by excluding same-sex married couples from federal recognition.

The Supreme Court has traditionally focused on four factors in deciding whether heightened scrutiny applies in particular case: whether the disadvantage persons lack political power, whether the characteristic at issue is relevant to the government’s legitimate interests, whether the characteristic is “immutable” (beyond the individual’s control), and whether there is a history of discrimination against the persons disadvantaged by the challenged law.
Clement argues that recent history shows that gay people are not politically powerless. Indeed, reciting recent political history, he claims just the opposite. “In short,” argues the brief, “gays and lesbians are one of the most influential, best-connected, best-funded, and best-organized interest groups in modern politics, and have attained more legislative victories, political power, and popular favor in less time than virtually any other group in American history.” The brief contends that gay people have gotten to the point where they can effectively contend in the political and legislative process and don’t need the assistance of heightened scrutiny by the courts to protect their interests. He also contends that there is not actually a long history of discrimination against gay people by the federal government, citing gay historians to the effect that most overt discrimination dates back to the early 20th century. He cites historians who contend that the concept of “the homosexual” is of relatively recent vintage, dating only to the mid-19th century, and so anti-gay discrimination does not have the ancient roots of racism and sexism. This conveniently overlooks the traditional English capital punishment for “sodomites,” Biblical injunctions for stoning, and host of horrors. (Anybody know where the label of “faggots” came from? Burning gays alive at the stake in medieval times.) So much for ancient roots of discrimination…
As to the “legitimate” interest of government in distinguishing between same-sex and different-sex couples, Clement’s brief channels the same arguments as the Prop 8 brief about procreation.
Reading these briefs, one is struck by what is omitted as well as by what is included. Neither brief goes in for gay-bashing. Neither brief contends that the people of California or the 1996 Congress could enact a discriminatory rule on marriage out of moral disapproval of homosexuality. Neither brief contends that gays are inadequate as parents. They are both carefully written to project a matter-of-fact tone about rational decision-making.
What they leave out – what is, indeed, surprisingly absent from an argument about the right to marry — is any reference to love and affection as having anything to do with marriage. Indeed, both briefs suggest that marriage is about children, not about the spouses, and that the great “danger” of “redefining” marriage to be “genderless” would be to make the prime focus on the marital partners instead of the family. Neither brief acknowledges the substantial percentage of same-sex couples raising children and the ways in which exclusion from marriage may be harmful to their children, instead harping on studies showing the disadvantages incurred by offspring of unmarried women who are raised without a father in the picture. Neither brief has anything to say about how having a legally-recognized marital relationship contributes to the well-being of the partners, or why same-sex couples shouldn’t enjoy the same well-being as different-sex couples.
Both briefs embrace an anachronistic view of the family that treats as virtually irrelevant the huge structure of legal rights and responsibilities attendant to modern marriage in America, paring the institution down to the rudimentary essentials of marriage in the pre-modern state. In other words, they are appealing to the “originalists” on the Court, as Cooper makes clear in his brief by expressing incredulity that same-sex couples would contend that the generation that enacted the 14th Amendment in 1868 intended to confer the right to marry on same-sex couples. Those members of the Supreme Court who regard the 14th Amendment as establishing general concepts of fairness and equality rather than a specific image based on mid-19th century life will, one hopes, reject this view, and Justice Anthony Kennedy, the “swing voter”, would seem to reject it as well in his concluding statement in Lawrence v. Texas, albeit in the context of the due process clause: “Had those who drew and ratified the Due Process Clauses of the Fifth Amendment [1791] or the Fourteenth Amendment [1868] known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew that times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
A month from now, the challengers of Prop 8 and DOMA Section 3 will file their briefs, and Cooper and Clement will receive their responses. The cases will be argued on March 26 and 27.