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Supreme Court Holds that Federal Law Bans Anti-LGBT Employment Discrimination in Historic 6-3 Ruling

Posted on: June 17th, 2020 by Art Leonard No Comments

The U.S. Supreme Court’s ruling on June 16, 2020, in Bostock v. Clayton County, Georgia, 590 U.S. — , 2020 WL 3146686, 2020 U.S. LEXIS 3252, that Title VII of the 1964 Civil Rights Act bans employment discrimination against people because of their sexual orientation or gender identity, was the fifth landmark in a chain of important LGBT rights victories dating from 1996, continuing the Court’s crucial role in expanding the rights of LGBT people. The ruling culminated seventy years of struggle and activism seeking statutory protection for sexual minorities against employment discrimination, dating from the 1950s, when early LGBT rights organizations always listed such protection as one of their goals, even before the federal government began to address the issue of employment discrimination statutorily in 1964.
Trump-appointee Neil Gorsuch wrote the Court’s opinion, joined by Chief Justice John Roberts (a George Bush appointee), and the four Justices appointed by Democratic presidents: Ruth Bader Ginsburg and Stephen Breyer (Bill Clinton) and Sonia Sotomayor and Elena Kagan (Barack Obama).
Samuel Alito, appointed to the Court by George Bush, wrote an outraged dissenting opinion, joined by Clarence Thomas, who was appointed by George H.W. Bush. Trump-appointee Brett Kavanaugh penned a more temperate dissent, concluding with a surprising salute to the movement’s achievement of this milestone.
Justice Gorsuch’s emergence as the writer of this opinion caught many by surprise, since he is an acolyte of Justice Antonin Scalia, whom he replaced on the Court. Despite Scalia’s avowed commitment to many of the interpretive principles that Gorsuch also embraces, one could not imagine Scalia writing such an opinion, especially in light of the vitriolic dissenting opinions that he wrote to all four prior landmark opinions.
Because Chief Justice Roberts voted with the majority of the Court, he was in the position to assign the majority opinion to Gorsuch. Had this been a 5-4 ruling without Roberts, Justice Ginsburg, the senior justice in the majority, would have decided which justice would write for the Court. In the two marriage equality rulings, Justice Anthony Kennedy, whose approach to gay issues had been established in earlier cases, assigned the opinions to himself as senior justice in the majority. Ginsburg might well have assigned the opinion to Gorsuch in any event, to help secure his vote, especially as it was possible that if Ginsburg or one of the other Democratic appointees wrote an opinion embracing arguments Gorsuch could not accept, he might either drift away or write a concurrence in the judgment, resulting in a plurality opinion. It is even possible that Roberts’ vote came from his institutional concern that such a significant ruling have the weight of a 6-3 vote. Since there were already five votes in favor of the employee parties, his vote would not affect the outcome, but would give him some control over the opinion through his assignment to Gorsuch.
The 1996 landmark gay rights ruling was Romer v. Evans, a decision that established for the first time that a state’s discrimination against “homosexuals” violated the 14th Amendment’s Equal Protection Clause, striking down a homophobic amendment that Colorado voters had added to their state constitution, forbidding the state from providing anti-discrimination protection to gay people. Justice Kennedy’s opinion for a 6-3 Court found that the only explanation for the Colorado amendment’s adoption was animus against lesbians and gay men, never a constitutionally valid reason, so the Court did not expressly consider whether heightened scrutiny would apply to a sexual orientation discrimination claim.
The second landmark decision was Lawrence v. Texas (2003), declaring that a state law making gay sex a crime violated the guarantee of liberty in the 14th Amendment’s Due Process clause, and overruling a 1986 decision, Bowers v. Hardwick, which had rejected such a challenge to Georgia’s penal law.
The third landmark, United States v. Windsor, held in 2013 that the federal government must recognize same-sex marriages that states had authorized, striking down Section 3 of the Defense of Marriage Act, which had put into the United States Code a definition of marriage limited to different-sex couples. The Court held that this violated the Due Process and Equal Protection rights of same-sex couples under the 5th Amendment, again without explicitly engaging in discussion of whether a law discriminating based on sexual orientation is subject to heightened scrutiny.
The fourth landmark, Obergefell v. Hodges, held in 2015 that gay people enjoyed the same fundamental right to marry that had previously been guaranteed to straight people under the Due Process and Equal Protection Clauses of the 14th Amendment. Since the Court dealt with this as a fundamental rights case, both from the perspectives of due process and equal protection, it again avoided discussing whether the discriminatory aspect of the case implicated a suspect or quasi-suspect classification of sexual orientation.
In each of these cases, Justice Anthony M. Kennedy, Jr., wrote for the Court. The decisions were noteworthy as being the product of an otherwise conservative Court whose Republican appointees outnumbered the Democratic appointees. In Windsor and Obergefell, Kennedy was the only Republican appointee to side with the Democratic appointees to make up the 5-4 majority of the Court. Justice Sandra Day O’Connor, who was appointed by Ronald Reagan, cast a sixth vote for the prevailing parties in Romer and Lawrence. Her replacement, Justice Alito, dissented in Windsor and Obergefell, as well as Bostock.
The Bostock decision, incorporating two other cases, Altitude Express v. Zarda and R.G. & G.R. Harris Funeral Homes v. Equal Employment Opportunity Commission, was the first major LGBT rights decision by the Court since Kennedy retired and Trump made his second appointment to the Court, seemingly locking in a solid conservative majority that was expected not to be so receptive to LGBT rights claims. With the retirement of Kennedy, it was widely believed that it would be unlikely for a gay rights claim to carry a majority of the Court.
Consequently, when the Court announced more than a year ago that it would review these three cases, tremors ran through the LGBT rights legal community. Although progress had been made in persuading the Obama Administration – including the EEOC – and the lower federal courts that Title VII’s ban on “discrimination because of an individual’s sex” could be interpreted to forbid discrimination because of sexual orientation or gender identity, it was difficult for people to count a fifth vote to add to the presumed votes of the Democratic appointees on the Court. Chief Justice Roberts had emphatically dissented from the Windsor and Obergefell rulings, and LGBT rights groups had strongly opposed the nominations of Gorsuch and Kavanaugh, based on their extremely conservative records as court of appeals judges, which was seemingly borne out in Gorsuch’s case by his dissent in Pavan v. Smith (2017), taking the transparently incorrect position that the Court had not clearly held in Obergefell that same-sex marriages must be treated the same as different-sex marriages for all legal purposes, including birth certificates, something specifically mentioned in Kennedy’s Obergefell opinion. Nobody really thought it possible that Alito or Thomas would ever cast a vote in favor of an LGBT employee’s claim, but Kavanaugh and Gorsuch were a question marks, as was the unpredictable chief justice, despite his anti-LGBT voting record up to that time.
The only facts about these cases that were relevant to the Supreme Court’s decision were that the three employees whose discrimination claims ended up before the Court claimed that they were fired because of their sexual orientation (Gerald Bostock and Donald Zarda) or their gender identity (Aimee Stephens) in violation of Title VII’s ban on sex discrimination. The merits of the Title VII claims had not been decided in Bostock or Zarda, because the district courts in both cases found the claims not to be covered under Title VII and dismissed them. Aimee Stephens’ Title VII claim survived a motion to dismiss, however; the district court found that although Title VII, standing alone, was violated in her case (but solely using a gender stereotype theory rather than holding the gender identity claims are necessarily covered by Title VII), but that the employer, a deeply religious funeral home owner, had a valid defense under the Religious Freedom Restoration Act (RFRA), and so granted judgement to the employer. The 11th Circuit affirmed the dismissal in Bostock, as did a three-judge panel of the 2nd Circuit in Zarda, but the 2nd Circuit ultimately reversed the dismissal en banc. The Equal Employment Opportunity Commission (EEOC), which had sued on Stephens’ behalf, appealed to the 6th Circuit, which reversed the district court, finding the RFRA defense invalid, and ruling that Stephens’ gender identity discrimination claim had been proven. The 6th Circuit also rejected the district court’s conclusion that the EEOC, representing Stephens, was limited to a gender stereotyping claim, expanding on its prior precedents to hold that gender identity claims are necessarily covered by Title VII as a form of sex discrimination. Thus, the only final merits ruling in the cases before the Court was the EEOC’s (and Stephens’) victory in the 6th Circuit. Stephens had intervened at the 6th Circuit, represented by the ACLU, making her a respondent alongside the EEOC in the Supreme Court.
After the Trump Administration took office, the Solicitor General took over the case from the EEOC and, consistent with the Administration’s view that Title VII did not forbid gender identity discrimination, effectively “changed sides,” arguing that the employer should have prevailed. But, surprisingly inasmuch as the employer was being represented by Alliance Defending Freedom, a conservative religious freedom litigation group, the employer had not sought review of the 6th Circuit’s rejection of its RFRA defense, so the only question before the Court was the Title VII interpretation issue. Stephens was left to defend the 6th Circuit’s ruling, with the EEOC, represented by the Solicitor General, on the other side. The Solicitor General also participated as an amicus on behalf of the government in the Bostock and Zarda cases.
There was a big difference between the earlier landmark cases and this case. The four landmarks all involved interpretations of Constitutional Due Process and Equal Protection, and were decided, in sometimes quite emotional opinions by Justice Kennedy, based on concepts of human dignity and equality. The Bostock case, by contrast, was a matter solely of statutory interpretation, and solely of Title VII (despite Justice Alito’s decision to dwell on the RFRA question in his dissent). Perhaps surprisingly, two of the most ardent “textualists” on the Court, Trump’s appointees, parted company about how to apply that approach in determining the meaning of a 55-year-old statute.
Textualists contend that statutory interpretation is a matter of figuring out what the meaning of statutory language was at the time it was adopted. Extraneous information, such as congressional committee reports, hearing transcripts, speeches on the floor of Congress or statements inserted into the Congressional Record, are generally rejected by textualists, who argue, as Scalia memorably wrote in a 1998 opinion also involving Title VII and sex discrimination, that “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”
Gorsuch and Kavanaugh (as well as Alito) swear allegiance to this principle, but it took them in different directions in this case. Gorsuch, who had signaled this result as a possibility during the oral argument on October 8 last year, inclined towards a literalistic approach to the words of Title VII. While claiming that he was trying to determine “the ordinary public meaning” of the words at the time they were enacted, he rejected the argument that this meant that sexual orientation and gender identity could not possibly be covered, because he was persuaded by various arguments and examples that the statute as properly understood has always prohibited discrimination against people because of their “homosexuality” or “transgender status.” He wrote, “an employer who intentionally treats a person worse because of sex – such as firing the person for actions or attributes it would tolerate in an individual of another sex – discriminates against that person in violation of Title VII.”
Having accepted that point, he found persuasive several examples offered by counsel for Bostock and Zarda. Most prominent was the example of two employees, a man and a woman, with equally good qualifications, work records, and so forth, both of whom are attracted to men. The employer will hire the woman but reject the man. Because the employer will tolerate attraction to men by women but not by men, the employer’s refusal to hire the man is discrimination because of the man’s sex.
Stating his holding more generally, he wrote: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other facts besides the plaintiff’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.” The idea is that sex is supposed to be irrelevant to a personnel decision unless, as the statute provides, the employer can prove that sex is a bona fide occupational qualification for the job in question, an affirmative defense provision that Gorsuch neglects to mention. But Gorsuch agreed that making a personnel decision because the person is gay or transgender makes sex relevant to the decision, and thus is generally prohibited by Title VII. Or, as he put it quite strongly, “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
The issue, wrote Gorsuch, is whether the plaintiff’s sex is a “but-for” cause of the challenged personnel action, but it doesn’t have to be the sole cause, because the statute does not expressly require that. “When an employer fires an employee because she is homosexual or transgender,” he explained, “two causal factors may be in play, both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.” Because all three cases being argued involved discharges, it is not surprising that Gorsuch mentions only discharges, but the clear important of the decision is that all the personnel actions coming within the scope of Title VII come within this ruling.
Responding to the argument that this could not possibly be the meaning of a statute passed in 1964, Gorsuch insisted that it has always been the meaning, it just was not recognized as such by the courts until more recently. He characterized this as the “elephant in the room” that everybody pretended was not really there. It was now time to recognize the presence of the elephant.
Aside from some passing references, Gorsuch’s interpretive discussion, and the examples he presented, focused mainly on the sexual orientation issue, but he was careful to mention gender identity or transgender status as well as sexual orientation whenever he stated his conclusions.
Alito unkindly stated in his dissent that Gorsuch’s conclusion that sexual orientation and gender identity are covered by Title VII is “preposterous.” Alito’s focus on the “original meaning” of statutory language, which he documents at length, shows as a matter of the historical record that in 1964 gay people were widely reviled as sick criminals, so it is impossible in his view to read the statutory language of 1964 as forbidding discrimination on this ground. Furthermore, he pointed out, as of 1964 the public’s awareness of transgender individuals was slight at best. Indeed, the very terms “transgender” and “gender identity” were not even used until much later. That a statute enacted in 1964 could be interpreted as prohibiting discrimination on this ground could not possibly accord with its “ordinary public meaning” at that time, he argued. But Gorsuch countered that Alito was talking about legislative intent, not contemporary meaning of the statutory language. As Scalia wrote so often in cases where he rejected evidence of legislative history, when the law is reduced to a written text, it is the text that is the law. Gorsuch even cited a few sources to suggest that some people at or near the time of enactment actually believed that gay or transgender people might have discrimination claims under Title VII.
“Ours is a society of written laws,” Gorsuch wrote. “Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”
Reading Alito’s dissenting opinion may induce nausea in the reader, so graphic is his recounting of the horrendously homophobic views of the government and the public towards LGBT people in 1964, but he recites them to make his point that prohibition of discrimination on these grounds could not possibly be a correct textualist interpretation of this language from his perspective. He started his dissent pointedly by saying that the Court was engaged in “legislation,” not interpretation. And he concentrated on shooting holes in Gorsuch’s examples of the situations that led Gorsuch to conclude that discrimination because of homosexuality or transgender identity is, at least in part, sex discrimination.
Alito also wandered far from the central question in the cases, interjecting discussion of various issues likely to arise as a result of the decision, such as hardship for employers with religious objections to homosexuality or transgender identity (such as the employer in the Harris Funeral Homes case), and objections by co-workers to transgender employees using bathrooms and locker rooms. Gorsuch rejoined that these were questions for another day, not presently relevant to decide the appeals before the Court, noting particularly that Harris Funeral Homes had not asked the Court to review the 6th Circuit’s decision rejecting its RFRA defense. Alito was definitely putting down markers for the future cases that the Court may confront.
Kavanaugh makes some of the same points as Alito in his dissenting opinion, but it is notable that he did not join Alito’s dissent. This may be at least in part a generational thing. Gorsuch and Kavanaugh are considerably younger than Alito. By the time they were in college and law school, there were out gay people around and, on a personal level, they undoubtedly both agreed that as a matter of politics it would be appropriate for Congress to ban such discrimination. They just differed on whether the Court could reach the same result through interpretation of the 55-year old law. Kavanaugh noted that three-judge panels of ten circuit courts of appeals had rejected this interpretation. 30 judges out of 30, he wrote, more than once in his opinion, as if the unanimity of an incorrect interpretation somehow turned it into a correct interpretation. Obviously, these judges did not recognize the “elephant in the room”!
For Kavanaugh, this was really a “separation of powers” issue. The question for the Court, he wrote, was “Who decides?” The legislature has the power to make law, while the courts are limited to interpreting the statutes passed by the legislature. Here, agreeing with Alito, he asserted that the Court’s decision was violating the separation of powers. And he disagreed with Gorsuch’s approach to textualism in this case, find it too narrowly focused on individual works, thus losing the context necessary in his view to determine the contemporary “public meaning” of the overall provision in 1964.
However, Kavanaugh concluded his dissent revealing his political, as opposed to interpretive, preferences. “Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans,” he wrote. “Millions of gay and lesbian Americans have worked hard for many decades to achieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit – battling often steep odds in the legislative and judicial arenas, not to mention in their daily lives. They have advanced powerful policy arguments and can take pride in today’s results. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend Title VII.” Kavanaugh’s dissent largely ignored transgender people. His omission of them from this paragraph is inexplicable in light of the scope of the Court’s opinion and their activist role over the past several decades in seeking protection against discrimination.
Interestingly, Gorsuch premised the case entirely on a strict textualist reading of the statute, avoiding reliance on the alternative theories that the EEOC and some lower courts embraced. One such theory was gender stereotyping, grounded in the Court’s 1989 decision in Price Waterhouse v. Hopkins, in which the Court held that an employer who takes an adverse action because an employee fails to comport with stereotypes about women or men has exhibited an impermissible motivation for its actions under Title VII. Another theory, first developed in race discrimination cases, was that discharging a worker because he or she was engaged in an interracial relationship was a form of discrimination because of race. Neither this “associational theory” nor the sex stereotyping theory entered into Gorsuch’s rationale for binding Title VII applicable in Bostock.
The Court’s opinion has the immediate effect of extending protection to LGBT workers in the majority of states that do not ban sexual orientation or gender identity discrimination in their state civil rights laws, but there remain significant gaps in protection. Title VII applies to employers with at least 15 employees, state and local government employees, and federal employees. It does not apply to the uniformed military (so this decision does not directly affect Trump’s transgender service ban), or to religious organizations in their policies on “ministerial employees.” Thus, a substantial portion of the nation’s workforce does not gain any protection from discrimination by this interpretation of Title VII, because a substantial portion of the workforce is employed by smaller businesses or is classified as non-employee contractors. Furthermore, as Gorsuch noted briefly but Alito expounded at length, the Religious Freedom Restoration Act (RFRA) might be interpreted to “supplant” the Title VII protections in particular cases.
The potential application of RFRA is worth noting. Reading Gorsuch’s opinion, one might immediately identify this as a potential “poison pill.” A few years ago, in its Hobby Lobby decision, the Supreme Court suddenly discovered that business corporations could argue that a particular policy mandated by another federal law unduly burdened the employer’s free exercise of religion, and they might thereby escape compliance with the law if the government fell short in showing that its policy was the least restrictive alternative to achieve a compelling government interest. (In Harris Funeral Homes, the 6th Circuit interpreted RFRA in this context and found that the government’s compelling interest in preventing sex discrimination could be achieved only by an outright prohibition, without an exception for business owners who had religious objections.) Although Justice Alito’s opinion for the Court in Hobby Lobby rejected the idea that an employer could make such an argument in defense of a race discrimination claim, Justice Ginsburg pointed out in dissent that Alito’s opinion failed to address the issue of sexual orientation, pointing to cases where businesses claimed a religiously-based right to discriminate against gay people. This is an issue that is hardly settled, and Gorsuch’s reference to the possibility of RFRA as a “super statute” to “supplant” Title VII protections in “appropriate cases” is ominous. Where a case does not involve “ministerial employees,” the full weight of Title VII normally applies to the issue of employment discrimination by religious institutions whether because of race or color, sex or national origin. Shortly, the Court will be ruling on some new cases about the scope of this “ministerial” exception, and may issue a decision that bears on cases in which, for example, gay employees of Catholic educational institutions have been terminated for entering same-sex marriages.
In addition, of course, Title VII only applies to employment decisions. It doesn’t affect decisions by companies about hiring people as non-employee independent contractors, and it doesn’t apply to the myriad other ways that LGBT people encounter discrimination through denial of services, housing, and other privileges of living in our society. This decision does not eliminate the need for enactment of the Equality Act, a bill that would amend numerous provisions of federal law to extend anti-discrimination protection to LGBT people, while amending Title VII to make explicit the coverage of sexual orientation and gender identity. Perhaps most importantly in terms of gap-filling, the Equality Act would add “sex” to the prohibited grounds of discrimination in federal public accommodations law while at the same time expanding the concept of a public accommodation, and would also require federal contractors and funding recipients not to discriminate on these grounds.
Alito’s dissent suggested that the reasoning of the Court’s opinion could protect LGBT people from discrimination under all those other federal statutes that address discrimination because of sex. That would fill a significant part of the gap left by this decision, but not all of it, because, as explained in the previous paragraph, the Civil Rights Act provisions on public accommodations do not forbid sex discrimination and small employers are not covered. Alito appended to his dissent a list of more than 100 federal statutory provisions that he claimed would be affected by this decision, among them Title IX of the Education Amendments Act, under which courts have addressed disputes involving transgender students. This provides a useful “to do” list for the LGBT rights litigation groups, finding cases to firmly establish that the Court’s conclusion in Bostock applies to all those other protections. Closing the gaps through passage of the Equality Act and through passage of state and local laws to cover employers not subject to Title VII must be an ongoing project. There also may be an opening to persuade state courts that they should adopt similar interpretations of the prohibition of sex discrimination under their state laws.
An early test may come as courts confront challenges to a new regulation announced by the Department of Health and Human Services, just days before this decision was announced, reversing an Obama Administration rule under the Affordable Care Act’s antidiscrimination provision and “withdrawing” protection against discrimination under that Act for transgender people. Lawsuits were quickly threatened challenging this regulation. The ACA incorporates by reference the sex discrimination ban in Title IX, so federal courts should read this consistentlyly with Bostock and hold that the regulatory action violates the statute.
Another important point to bear in mind is that coverage of a form of discrimination by the statute does not inevitably lead to a ruling on the merits for the employee. Title VII litigation can be very difficult, and many employees lose their cases early in the process due to procedural roadblocks or, in the case of sex discrimination claims, to the courts’ view that sex may be a “bona fide occupational qualification” in a particular case. When plaintiffs attempt to represent themselves, they may be felled by statutes of limitations, shortcomings in their factual pleadings, or limited resources to investigate the facts and articulate a convincing claim as required by federal civil pleading standards. Furthermore, many employers require employees to execute arbitration agreements when they are hired, so plaintiffs seeking to get their proverbial “day in court” may be disappointed to discover that they are relegated to arguing in private before an arbitrator, in many cases carefully selected by the employer based on his or her “track record” in ruling on employee claims. The road to vindication is not always a smooth one.
The Court’s decision was immediately controversial with certain conservative and religious groups, some of which quickly made spurious claims about how this ruling could interfere with their free exercise and free speech rights, but public opinion polls have consistently shown overwhelming support for outlawing employment discrimination against LGBT people for many years now, so there was no startled outcry by the public at large in the days following the ruling. Those who are cynical about the idea of judging by “neutral principals of law” have often exclaimed that the Supreme Court follows the election returns, so they may characterize this opinion as more political than legal, but the “bipartisan” nature of the line-up of justices would rebut that contention. And, notably, many of the court of appeals decisions that have ruled this way in recent years have also been bipartisan. The opinion, in the matter of fact way that Gorsuch writes about “homosexual” and “transgender” people in the opinion, comes across as impassive by comparison to the florid prose of Kennedy, but it gets the job done.
Kavanaugh’s closing paragraph says that “gays and lesbians” should take pride in this victory, which was hard-earned through decades of political, legal and personal struggle. A brief pause to take pride in this ruling is appropriate, but pushing ahead to fill the remaining gaps in full legal equality is essential. A battle has been won, but not yet the war.
Unfortunately, neither Donald Zarda nor Aimee Stephens lived to learn of their victories. Zarda, who had been fired from a job as a sky-diving instructor, died in a sky-diving accident while his case was pending. Stephens was gravely ill by the time of the oral argument (which she attended, although wheelchair bound), and passed away just weeks before the Court’s decision. Gerald Bostock, however, gave delighted interviews to the press, and was looking forward to the remand back to the district court so that he would get his opportunity to prove that he was the victim of unlawful discrimination.
The Court was flooded with amicus briefs in these cases, too numerous to mention individually here. On October 8, 2019, the Court first heard arguments on the sexual orientation issue, with Pamela S. Karlen representing Bostock and the Estate of Zarda, Jeffrey M. Harris representing the Clayton County and Altitude Express, and Solicitor General Noel J. Francisco presenting the Trump Administration’s position in support of the employers. Next the Court heard arguments on the gender identity issue, with David Cole representing Stephens, John J. Bursch representing Harris Funeral Homes, and again Solicitor General Francisco representing the Trump Administration’s position that gender identity discrimination is not covered by Title VII. The EEOC, the respondent in the case, was not separately represented and did not support the government’s position, evidenced by the government’s briefs, which unusually did not list attorneys from the agency.

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

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

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

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

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

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

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

The DOMA Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

After ridiculing Kennedy’s opinion for never providing a fully-developed analysis of any of the doctrinal bases cited for the Court’s holding, Scalia wrote, “Some might conclude that this loaf could have used a while longer in the oven.  But that would be wrong; it is already overcooked.  The most expert care in preparation cannot redeem a bad recipe.  The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a ‘bare . . . desire to harm’ couples in same-sex marriages.”  Scalia then went on to hotly dispute – as he did in his Romer and Lawrence dissents – that antigay animosity was behind the challenged law, rejecting the idea that anti-gay legislation is necessarily the result of bigotry.  He suggested that Kennedy failed to engage the arguments put forth by BLAG to defend Section 3 “because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them,” and accused the Court of labeling the proponents of DOMA as “enemies of the human race.” 

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

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

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

The Proposition 8 Decision

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

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

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

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

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

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

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

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

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

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