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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.

Supreme Court Invalidates Section 3 of DOMA but Avoids Ruling on Proposition 8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




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.

Obama Administration Files Amicus Brief in Opposition to Proposition 8

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

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

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

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

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

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

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

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

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

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

Prop 8 Case: The Respondents Weigh In

Posted on: February 22nd, 2013 by Art Leonard No Comments

Briefs have now been filed on behalf of the Prop 8 Respondents, the two same-sex couples on whose behalf the lawsuit challenging California Proposition 8 was filed, and the City and County of San Francisco, which was allowed by District Judge Walker to intervene as a co-plaintiff in the case.  These briefs, filed in Hollingsworth v. Perry, No. 12-144, on February 21, are different in their focus, reflecting the different roles of the plaintiffs and the intervenor, and the different motivations for bringing the case.

For the four plaintiffs and their attorneys, who were hired by the American Foundation for Equal Rights with the ultimate goal of getting the Supreme Court to declare that same-sex couples have an equal right with opposite-sex couples to marry, anywhere in the United States, their brief is about getting the Supreme Court to that point.  Although they argue, briefly, that the Proponents of Proposition 8, who are the Petitioners before the Supreme Court, lack constitutional “standing” to appeal the District Court’s Order striking down Prop 8, and alternatively that if the Court finds that Petitioners do have standing, it should affirm the 9th Circuit’s narrow ruling that Prop 8 is invalid because there was no rational justification for withdrawing the right to marry that same-sex couples in California enjoyed prior to its passage, they focus their main fire on the underlying question posed by Petitioners and evaded by the 9th Circuit: Does it violate the 14th Amendment for California (or any state) to deny same-sex couples the same right to marry that different-sex couples have?

By contrast, the City of San Francisco brief focuses more extensive attention on the standing question, and then addresses the merits mainly to support the 9th Circuit’s holding that there was no rational basis for California to withdraw the right to marry from same-sex couples. 

In some respects, the merits arguments are quite similar, since they hope to persuade the court that the Petitioner’s purported justifications for Proposition 8 are pathetically inadequate.  By taking these different orientations, however, the two Respondents (Plaintiffs below and Intervenors below) give the Court plausible alternatives for reaching a result that would revive same-sex marriages in California and, perhaps, make it available throughout the country.

Commentators have been speculating about what would happen if the Court agrees with Respondents that the Proponents of Proposition 8 — Dennis Hollingsworth and his three confederates and their campaign organization, on 8 — lack federal constitutional standing.  In that event, the Supreme Court does not have jurisdiction and should dismiss the appeal and, similarly, the 9th Circuit would also have lacked jurisdiction and should have dismissed the appeal.  That leaves Judge Walker’s 2010 decision as an unappealed district court decision.  Some have speculated that, as such, it would be binding only for the four plaintiffs and the two county clerks who denied them marriage licenses.   Petitioners argue this, contending that because the case was not brought as a class action on behalf of all unmarried same-sex couples in California, and because no attempt was made to certify a defendant class of all California county clerks, the trial court would not have authority to award statewide relief.  Both Respondent briefs attack this argument, but the City of San Francisco brief develops it at greater length, which is logical considering that the Intervenor’s main concern is reviving same-sex marriage in California (and, particularly, in San Francisco, whose city clerk was not one of the defendants).  The Briefs argue, persuasively, that the case is a facial challenge to the constitutionality of Prop 8.  If it is unconstitutional as to the plaintiffs, it is also unconstitutional as to all similarly situated people.  Furthermore, argues the City of San Francisco brief, the county clerks are agents of the state when they issue marriage licenses and accept certificates for filing, so an order running against the state officials charged with supervisory authority is sufficient to have statewide effect.  These arguments are very convincing and should allay the fears of those who suggest that a victory on standing would have no immediate effect beyond the two couples who agreed to be plaintiffs in this case.

The plaintiffs’ brief addresses standing briefly, because although they are bound to make the argument — after all, they raised it as soon as Proponents sought a stay of Judge Walker’s Order — but they really don’t want the  Court to decide this as a standing case, because their goal is a ruling on the merits that extends the right to marry nationwide.  Unless the Court has jurisdiction, it can’t issue such a ruling, and unless the Petitioners have standing, the Court has no jurisdiction to rule on the merits.

By contrast, the City of San Francisco brief eagerly pursues the standing issue, since it is a potential big winner for their constituency — the LGBT community in San Francisco.  And they have great arguments to make.  Their research also uncovered a particularly helpful authority to cite: a law review article authored by Chief Justice John G. Roberts, Jr., baack when he was a practicing lawyer, titled “Article III Limits on Statutory Standing,” 42 Duke L.J. 1219 (1993).  They quote Roberts: “[O]ne thing [Congress] may not do is ask the courts in effect to exercise . . . oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue.”  This is a c.f. cite, of course, but nonetheless on point to the main line of the argument.  They also make the point, calculated to strike terror in the hearts of federal judges, that if Proponents’ standing is upheld, then in future every initiative proponent will write into their constitutional amendment initiatives a provision authorizing the proponents to defend the initiative in court in case state officials decide not to do so, thereby automatically conferring standing.  Furthermore, state legislature might insert such provisions into their statutes, in case a future administration should decide not to defend a prior enactment (see, e.g., DOMA Section 3!).

On the merits, the City of San Francisco sharply disputes the Petitioners’ attack on the logic of the 9th Circuit’s narrowly-focused ruling, while taking on the merits of the purported justifications for Prop 8.  At the heart of their argument is the irrefutable fact that the California Supreme Court has ruled that the only effect of Prop 8 is to deny same-sex couples the label of marriage, since the Domestic Partnership Law confers all state law rights of marriage on legally-partnered same-sex couples, and California family law has evolved to the point of treating same-sex couples and different-sex couples with just about total equality when it comes to parenting rights and responsibilities.  The heart of the Petitioners’ argument is that Prop 8 is justified as a means of encouraging responsible procreation, but the City of San Francisco brief cogently points out that Prop 8 did not affect California law relating to procreation and parenting in any way — other, of course, than to disadvantage the children being raised by same-sex couples who will be barred from marriage.  They concentrate on showing that there is no rational basis for Prop 8 as a measure rescinding rights, and don’t push for a higher level of judicial reivew.

The brief filed on behalf of the plaintiffs — Kristin M. Perry, Sandra B. Stier, Paul T. Katami, and Jeffrey J. Zarrillo — makes the same points, but aims most of its firepower at a broad-ranging equal protection argument that seeks to place this case in the mainstream of the Court’s equal protection jurisprudence.  The argument is not, at its foundation, significantly different in its attack on the Petitioner’s justifications for Prop 8, but the orientation is different, since the brief devotes little attention to defending the 9th Circuit’s narrow approach.  Their goal is a broader ruling.  The City of San Francisco would be happy with a broader ruling, of course, and their brief would support it, but most of their emphasis goes towards arguing that this case, like Romer v. Evans, is about taking away rights that previously existed, making it California-specific.  The City brief thus devotes more attention to the nasty campaign waged by Proponents to enact Prop 8.  Both briefs, however, do a brilliant job at skewering the logic of the “responsible procreation” argument.

And the Plaintiffs’ brief also does a brilliant job at countering Petitioners’ argument on the level of judicial review.  This brief argues that strict scrutiny or heightened scrutiny would be justified in cases involving sexual orientation discrimination, perhaps even going a bit further than the Justice Department has gone in its arguments in the DOMA case.   Although the heading for this part of the brief asserts that “Discrimination on the basis of sexual orientation triggers heightened scrutiny,”  they assert at the outside that “the undisputed fact that gay men and lesbians have been subjected to a history of discrimination based on a trait that bears no relationship to their ability to contribute to society is sufficient, in and of itself, to render classifications based on sexual orientation ‘suspect’ and to give rise to heightened scrutiny.”  This one sentence conflates the two levels of judicial review.  If a classification is “suspect,” then it gets strict scrutiny, which puts a heavy burden on the defender of the challenged enactment to show that it is necessary to achieve a compelling governmental interest – a burden that really cannot conceivably be met in this case, especially as we come up on the 9th anniversary of same-sex marriages in Massachusetts with no evidence of any of the horrible consequences hypothesized by the Petitioners in their defense of Prop 8.  And yet, the brief ends the sentence by referring to heightened scrutiny.  The argument deftly veers back and forth, pushing towards a strict scrutiny approach.  Perhaps this like bargaining with the Court; showing that strict scrutiny would be justified by the form of analysis the Court has used in the past, which would make mere “heightened scrutiny” an “easier lift” for the Court.  Either way, the Petitioner’s arguments to justify Prop 8 would be unavailing were the Court to apply any form of “heightened scrutiny” to the case.

Perhaps most importantly, both Respondent briefs point out that the concept of marriage described by the Petitioners is out of touch with reality, invented for the purpose of litigation, and has no relationship to the arguments that Proponents made in 2008 to get their measure approved by the voters.  As I observed in my prior analysis of the Petitioners’ brief, it conspicuously fails to acknowledge the personal aspect of marriage.  For the Petitioners, marriage is all about children and not about the marital partners and their relationship.  The Petitioners argue as if all marriages revolve around children, and same-sex partners don’t have children.  For the Respondents, marriage is about love, devotion, making a life together, forming a family (which may include children), taking responsibility for each other, etc.  The City brief reiterates several times the record evidence of approximately 40,000 children being raised by same-sex couples in California, and forcefully makes the point that denying marriage to their parents disadvantages them.  And on each point both briefs find support for the non-child-centered elements of marriage in prior rulings by the Supreme Court.

There is no doubt in reading these briefs that they were drafted by masterful appellate advocates, who should be acknowledged for their achievement.  David Boies and his partners and associates at Boies, Schiller & Flexner LLP, and Theodore B. Olson and his partners and associates at Gibson, Dunn & Crutcher LLP, have turned out a brief that is a true masterpiece, precise, passionate, every word calculated to make its mark.  S.F. City Attorney Dennis J. Herrera can be proud of the forceful brief produced by Chief Deputy City Attorney Therese M. Stewart and her team of Deputy City Attorneys.  Both briefs could be models for courses on drafting appellate briefs, and deserve to be studied by anybody interested in the issues in these cases, procedural and substantive.  Bravo!  (But make no mistake, some of the briefs filed on the other side, standing on their own, appear quite strong and forcefully written.  It’s just that their arguments fall to pieces under the combined assault of the two Respondent’s briefs.)  

The next stage in the Prop 8 case will be filing of amicus briefs in support of Respondents, and then a Reply Brief from the Petitioners, with oral argument to be held on March 26.  The immediate drama now focuses on the White House, where President Obama is under mounting pressure to authorize the Justice Department to file an amicus brief in this case.  The federal government is not a party to this case about the constitutionality of a state measure, and is busy preparing to attack Section 3 of DOMA in the oral arguments to be held on March 27 in U.S. v. Windsor.  Many of the arguments that the Solicitor General will make in attacking the “justifications” for DOMA will be pertinent to the Prop 8 case – not least about the level of judicial review – so filing an amicus brief in this simultaneously considered case would be redundant from a legal point of view, but it could be meaningful from the point of view of strategy and signalling to the Court and the public.

Merits Briefs in Supreme Court Marriage Cases Make Heavy Federalism Pitch

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

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

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

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