New York Law School

Art Leonard Observations

Posts Tagged ‘Donald Verrilli’

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but the president had ordered that the executive branch continue to enforce the statute until it was either repealed or declared unconstitutional.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.

Supreme Court Argument on Proposition 8 Strongly Suggests There is No Majority to Rule on the Merits

Posted on: March 26th, 2013 by Art Leonard No Comments

On the tenth anniversary of its oral argument in Lawrence v. Texas, the historic 2003 ruling striking down laws against consensual gay sex, the U.S. Supreme Court took up the contentious issue of same-sex marriage on March 26, 2013, having granted a petition by four of the proponents of Proposition 8 to review the lower courts’ rulings that the California anti-same-sex marriage constitutional amendment (adopted by voters in 2008) violates the  Equal Protection Clause of the 14th Amendment.  After reviewing the written transcript and audio recording of the argument, this observer is persuaded that, at least as of today, there is no majority on the Court to rule one way or the other on the merits of this case.  But it is possible that the oral argument tomorrow on the constitutionality of Section 3 of the federal Defense of Marriage Act may cast further light on what will happen when opinions are announced (most likely in June),  since many of the underlying arguments are the same.

Charles Cooper appeared for the Petitioners, Theodore Olson for the Respondents (plaintiffs, two same-sex couples who brought the case in federal district court in San Francisco after having been denied marriage licenses because of Proposition 8), and Donald Verrilli, Jr., Solicitor General of the United States, appeared as “amicus curiae” (friend of the Court) to present the federal government’s position in support of the Respondents.

The Court had allocated an hour for this argument, but eight of the Justices were so fully engaged in questioning and responding to the lawyers’ arguments that they allowed the session to run for about an hour and a half, the extra time being attributable mainly to the question that the Court added when it granted the petition to review this case: Whether the Petitioners (who had intervened as defendants in the district court and then appealed the district court’s ruling to the 9th Circuit and ultimately to the Supreme Court) had “standing” as required by the Court’s precedents. 

The Court’s addition of this question signaled that at least four of the Justices thought it was an important question, and the arguments back and forth this morning reinforced that point.   Chief Justice Roberts interrupted each of the lawyers at the outset of their presentations, cutting off their attempts to argue the merits by asking them first to address the standing issue, and all the Justices participated in the questioning except Justice Clarence Thomas, who never asks questions during oral argument and, to judge by the transcript and audio recording, said not a word during this one.  Roberts didn’t redirect Cooper back to the merits until he had used up a substantial portion of his argument time on standing, and he also allowed the standing issue to eat up a substantial portion of Ted Olson’s time.

The Petitioners’ argument on standing is simple: The California Supreme Court, in an advisory opinion requested by the 9th Circuit, held as a matter of California law that initiative proponents have standing to defend their initiative if the state officials who would normally provide such a defense refuse to do so.  Their standing is not based on the “individualized injury” that the Supreme Court normally requires, but instead on their designation as representatives of the state’s interest.  This reasoning struck the 9th Circuit as sufficient, but some of the Justices had problems with it.  Olson, arguing for Respondents, harped on the point that initiative proponents are not officers of the state, not accountable to the state, not subject to the control of the state, capable of running up large legal fees in the litigation, and lacking the fiduciary obligation of public officials to act in the interest of the public. (For example, they made arguments on the merits that were contrary to settled public policy of the state of California.)  Solicitor General Verrilli tried to avoid taking a position on standing, pointing out that the federal government had not taken a position in its brief, but when pushed to take a position opined that it was a “close question” but that “the better conclusion is that there’s not Article III standing.”  However, some Justices seemed sympathetic to Cooper’s argument that finding no standing for initiative proponents would leave state officials who disliked a popular initiative with the power to veto it by refusing to defend it in the courts.  This argument had impressed the 9th Circuit as well.

It was difficult to get a read on whether this will be the basis for the Court’s ruling.  If the Court finds that Petitioners lacked standing to appeal the ruling, then the 9th Circuit’s decision would be vacated and the district court’s decision would be left as essentially an unappealed trial court decision, of no controlling precedential value but binding on the parties to the case.  Arguably, that would mean that California would resume providing marriage licenses to same-sex couples, since District Judge Walker’s final order in the case would go into effect, but perhaps a county clerk who did not want to comply could initiate new litigation in a different federal court.  Judge Walker’s order holds Proposition 8 unconstitutional and directs the named defendants, state officials, to treat it as a nullity.  This would revive the California Supreme Court’s 2008 ruling in In re Marriage Cases, to the extent that its holding was impaired by Proposition 8.

The standing issue provides a fallback position for the Supreme Court in case it decides to avoid ruling on the merits, and from the questioning this morning, it seems that it may come in handy for that purpose, as it was hard to tell based on the statements by the Justices whether there could be a five-member majority to rule that same-sex couples are entitled to marry by virtue of the 14th Amendment’s Equal Protection Clause.  It seemed, from comments that he made at various points during the argument, that Justice Anthony Kennedy, generally seen as the ‘swing voter’ on this Court, sometimes lining up with the other Republican appointees for conservative decisions, sometimes lining up with the Democratic appointees for more moderate opinions, is having the most difficult time making up his mind in this case.

Justice Kennedy mused at one point that perhaps the Court should not have granted the petition to review the case.  His questions and comments certainly revealed a sympathy with the Respondents’ claim to the right to marry, particularly emphasizing the potential harms to the thousands of children being raised by same-sex couples in California whose parents are deprived of that right by Proposition 8.  At the same time, he seemed bothered by the idea that a ruling on the merits striking down Proposition 8 would immediately put a stop to the unfolding political debate and impose same-sex marriage throughout the country.  He picked up on Cooper’s point that same-sex marriage is a new phenomenon, that its long-term impact on society is as yet unknown, and that a California voter might rationally conclude that Proposition 8 should be passed to avoid potential harms and to allow the “experiment” of same-sex marriage to play out in other jurisdictions.  This argument might pull him over to the conservatives who seem prepared to rule that there is no constitutional right for same-sex couples to marry, but his reluctance to adopt that extreme view, which would be inconsistent with the underlying rationale of his opinion for the Court in Lawrence v. Texas, could make a dismissal without an opinion on the merits his most desired escape hatch. 

This would be a neat solution that would avoid creating a national precedent while restoring the right to marry in California. The Court could dismiss the writ of certiorari as “improvidently granted,” a device it has used in the past to avoid ruling on a contentious issue, and one outcome in this case that seems to have eluded many commentators (including this writer) who have enumerated the potential rulings in recent weeks.

There is a precedent for this in the context of gay rights.  In 1980, the New York Court of Appeals ruled in People v. Onofre that the New York sodomy law was unconstitutional, invoking the due process clause of the 14th Amendment of the federal constitution, and the Supreme Court denied a petition by the local prosecutor to review the case.  (New York’s attorney general had not defended the statute in the Court of Appeals and did not support the petition for review.)  In 1983, the Court of Appeals ruled in People v. Uplinger that once the sodomy law had been invalidated, a statute penalizing soliciting for the purpose of engaging in sodomy would also be invalid, as a “companion statute to the consensual sodomy law” that suffered from the same constitutional flaws.  The local prosecutor sought Supreme Court review, and this time the Court granted the petition and heard oral argument.  It became clear at oral argument, however, that ruling on the merits would necessarily require a judgment on the constitutionality of sodomy laws as well, and the Court subsequently announced that it was dismissing the writ of certiorari as having been “improvidently granted.”   (A few years later, however, the Court agreed to review a decision in which the 11th Circuit held that the Georgia sodomy law might violate the 14th Amendment, Bowers v. Hardwick, with unfortunate results.)  That left the New York Court of Appeals ruling standing as if the writ of certiorari had originally been denied.  Were the Supreme Court to follow this route in the Proposition 8 case, that would leave the 9th Circuit’s decision standing, and the Supreme Court would have avoided a ruling on the merits either way.

A dismissal of the writ would be the equivalent of a denial of review, which, according to the Court’s practice, should not be construed as either approving or disapproving the holding or reasoning of the lower court.  Thus, the Court would not be expressing a view as to the correctness of the 9th Circuit’s rationale for striking down Proposition 8, and no national precedent would be set.

One of the important issues in the case is whether the Court, if ruling on the merits, should subject Proposition 8 to “heightened scrutiny,” under which the defenders of Proposition 8 would lose if they could not persuade the Court that the measure substantially advanced an important state interest.  As to that, Justice Sonya Sotomayor asked Cooper, counsel for the Petitioners, “Outside of the marriage context, can you think of any other rational basis, reason, for a State using sexual orientation as a factor in denying homosexuals benefits or imposing burdens on them?  Is there any other rational decision-making that the Government could make?  Denying them a job, not granting them benefits of some sort, any other decision?”  Cooper’s response, a major concession, was, “Your Honor, I cannot.  I do not have any — anything to offer you in that regard.”  This might suggest that heightened scrutiny is the appropriate level of review, or it might just be construed as a concession that, apart from the marriage context, there is no rational basis for the government to discriminate against gay people.

Cooper’s rejoinder, however, was to argue that same-sex couples and different-sex couples are not “similarly situated” with respect to what he argues is one of the state’s important interests in marriage — providing a vehicle for responsible procreation and child-rearing — and thus that Justice Sotomayor’s question is not relevant to this case.  Cooper quickly recovered from his “concession” and argued that sexual orientation should not be deemed a suspect classification as “the class itself is quite amorphous” and “defies consistent definition,” asserting that expert witnesses for the plaintiffs at trial were “quite vivid” on this point.

During Ted Olson’s argument on the merits, Justice Scalia signaled where he (and most likely Justices Alito and Thomas) would come down on the merits, by asking Olson when the exclusion of same-sex couples from marriage became unconstitutional?  Was it unconstitutional in 1791 when the Bill of Rights was adopted?  In 1868 when the 14th Amendment went into effect?  Scalia’s general position is that constitutional provisions are limited to the meaning they had when they were adopted, and thus a claim for same-sex marriage cannot be valid today under the 14th Amendment if it would not have been deemed valid when the amendment was adopted.  Olson countered with well-worn examples.  When did public school segregation become unconstitutional?  The Congress that approved the 14th Amendment and sent it to the states for ratification maintained a segregated school system in the District of Columbia, and the Supreme Court approved the doctrine of “separate but equal” in the 1890s.  Unless Scalia is ready to repudiate Brown v. Board of Education (1954), his historicism is blatantly inconsistent, but that doesn’t give him pause.  He hectored Olson for a few minutes on Olson’s inability to pinpoint the moment when same-sex marriage acquired the status of a constitutional right.  Luckily, Scalia’s view on this does not command a majority on the Court, just the loyalty of Justices Thomas and, usually, Alito.   Chief Justice John Roberts has not been a consistent follower of that view, and Justice Kennedy clearly repudiated it in Lawrence v. Texas.   So the case won’t be decided on that basis.

None of the Justices seemed enamored with Solicitor General Verrilli’s argument that the Court should adopt the 9th Circuit’s rationale and hold that Proposition 8 was unconstitutional because California had already adopted family law policies that undercut all of the Petititoner’s arguments in its support.  This is the so-called 8-state solution, under which states that have accorded same-sex couples the legal rights of marriage under the guise of civil unions or domestic partnerships would be held to lack a rational basis of withholding the status of marriage.  Justice Stephen Breyer and Chief Justice Roberts shot holes through this argument, and all of the Justices who commented on it saw it as odd that states that had not accorded any rights to same-sex couples would be left alone while states who had granted such rights would be held to violate the constitution by not going “all the way.”  Nobody seemed to favor this approach.

Chief Justice Roberts did not tip his hand on the merits during the questioning, and the Democratic appointees appeared from their questions and comments to understand and endorse the argument that excluding same-sex couples from marriage might be insupportable as a matter of Equal Protection, so as all commentators had suggested in predicting the outcome, it may come down to Justice Kennedy. What the commentators hadn’t anticipated was Kennedy’s suggestion that the Court should not have granted review, creating the possibility that the 9th Circuit’s decision would stand without being endorsed or rejected by the Court. 

This would cabin the result to California in the short term, but would also leave unquestioned by the Supreme Court the 9th Circuit’s view that the arguments in support of Proposition 8 are not substantial enough to justify rescinding the right to marry. This, in turn, would set up the likelihood that the 9th Circuit might reverse the trial court decisions from Nevada and Hawaii, now pending on review, concerning the right of same-sex couples to marry in those states.  In both of those cases, district judges granted judgment against the plaintiffs.  Unleashed by a dismissal of the Prop 8 appeal, the 9th Circuit might reverse those rulings, quickly setting up a potential for two new Supreme Court cases in which the petitioners (the states of Nevada and Hawaii) would undoubtedly have standing.  Thus, a dismissal of this appeal without a ruling on the merits might lead to one or two new same-sex marriage cases on the Court’s doorstep within another year or two.