Virginia Attorney General Mark Herring filed a petition for certiorari in the Supreme Court on August 8 on behalf of Virginia State Registrar Janet M. Rainey, a named defendant in Bostic v. Rainey, one of the two challenges to Virginia’s same-sex marriage ban decided by the U.S. Court of Appeals for the 4th Circuit on July 28. (The other, Harris v. Rainey, was joined for decision at the requestof the plaintiffs, after the district court put their case “on hold” pending a decision in the Bostic appeal.) Herring’s Petition is a bit unusual in that he is asking the Supreme Court to grant review of the case and then affirm the decision below holding the state’s ban unconstitutional. On the other hand, in the recent saga of marriage equality litigation, this is perhaps not so unusual, as Herring is in the same position as was U.S. Attorney General Eric Holder, when the Solicitor General’s Office under his direction petitioned the Supreme Court to review and affirm the 2nd Circuit’s decision in Windsor v. United States, challenging the constitutionality of Section 3 of the Defense of Marriage Act.
Herring’s Petition, actually filed by counsel of record Stuart A. Raphael, Virginia’s Solicitor General who argued the case for the state in the 4th Circuit (listing as well on the brief Deputy Solicitor General Trevor S. Cox), makes a strong bid for the Court to take this case in preference to the pending cases from Utah and Oklahoma as the best vehicle for the Court to address the question that it decided not to address in June 2013 when it held that the Proposition 8 litigation could not be addressed on the merits by the Supreme Court because the petitioners lacked Article III standing to bring the appeal.
Therein lies Herring’s strongest argument for granting this petition in preference to the others recently filed from Utah and Oklahoma: As of December 2012, at least four members of the Court had decided that the question whether states are obligated by the 14th Amendment to allow same-sex couples to marry was deemed worthy of Supreme Court review, although the Court then signaled its jurisdictional concerns by adding the question of Petitioners’ standing to the grant of certiorari. But Herring has other strong arguments to make as to why Virginia’s Petition is the best one to grant: There is no possible standing problem in this case, as two county clerks of court are also petitioning for review and are vigorously defending the Virginia ban using qualified outside counsel. (The Virginia Attorney General’s office does not provide legal counsel to the independently elected county clerks.) By contrast, there may be a standing question in Utah, where the Salt Lake County clerk decided not to join the appeal of the case, and there is some question whether the Attorney General and Governor are appropriate defendants-appellants. There is a standing issue as to the recognition question in the Oklahoma case, which resulted in the 10th Circuit’s Oklahoma ruling being more narrowly focused just on the right-to-marry issue. Furthermore, he argues, Virginia’s ban is the most wide-ranging and exclusionary of those states whose Petitions are now before the Court.
But there are good traditional reasons for the Court to grant a Petition in at least one and possibly several of the marriage equality cases when it reconvenes later in September to review the summer petitions received.
Although there have now been about three dozen consecutive federal constitutional rulings in favor of marriage equality by state or federal trial courts and two federal courts of appeals, if one casts the chronological net back before Windsor there are certainly enough contrary rulings to say that there is a split of appellate authority on the questions presented by this case. One of the most significant factors considered by the Court in deciding to grant review is whether lower courts are divided on the question presented. The 8th Circuit rejected a 14th Amendment challenge to Nebraska’s marriage amendment as recently as 2006, and the highest courts of several states rejected similar challenges under their analogous constitutional provisions. The Virginia Petition cites as examples the Washington Supreme Court’s 2006 decision, a dismissal of an appeal from an adverse decision in Arizona in 2004, and the three early 1970s cases from Washington State, Minnesota and Kentucky. Surprisingly, the Petition does not cite the relatively recent adverse decisions from New York and Maryland, perhaps because both of those states have since become marriage equality jurisdictions – but the same could be said of Washington and Minnesota, of course, both of which legislated for marriage equality in recent years. The overriding point remains, however: there is an actual split of U.S. appellate authority over whether denying same-sex couples the right to marry denies them liberty and equality protection in violation of constitutional norms. Furthermore, there are appellate arguments pending in the 7th and 9th Circuits, and by the time the Court reconvenes to evaluate petitions, there may be one or more decisions from the 6th Circuit as well. There is litigation pending in every state that does not allow same-sex marriages. Clearly there is a national controversy to resolve.
Furthermore, after listing to the oral arguments before the 6th Circuit last week in cases from Michigan, Ohio, Indiana and Kentucky, it seems possible that there may be a first post-Windsor circuit split, depending how Judge Jeffrey Sutton, the likely swing voter, resolves his doubts. Sutton did indicate that if one were to subject the marriage bans to heightened scrutiny, they would probably fall. But he also seemed to signal a willingness to find the 6th Circuit bound by prior precedent not to accord heightened scrutiny, and even to find the challenges foreclosed in lower federal courts by the Supreme Court’s 1972 pronouncement in Baker v. Nelson, the Minnesota case, that the issue of same-sex marriage did not present a substantial federal question. Every court to rule thus far since Windsor has rejected that argument, pointing out that as of 1972 it was a plausible assertion but remains so no longer in light of cases like Romer v. Evans, Lawrence v. Texas, and U.S. v. Windsor. Of course, Baker is not binding in any sense on the Supreme Court itself, as it can certainly decide that what was not a “substantial question” in 1972 has become one as a result of intervening decisions and new understanding of the facts.
The Petition persuasively argues in support of the 4th Circuit’s fundamental rights analysis, but also makes a persuasive argument, within the limited confines of a Petition for Certiorari, of the equal protection arguments that could be made in support of heightened scrutiny. While pointing out that many of the post-Windsor rulings (including the trial court ruling in this case) found no rational basis for the marriage ban, a route that the Supreme Court could take without opining on whether anti-gay discrimination necessarily merits heightened scrutiny, the Petition makes a telling argument for heightened scrutiny. After summarizing the factors that the Supreme Court has looked to in the past in deciding whether a form of discrimination merits heightened scrutiny — that is, is deemed to employ a “suspect classification” – the Petition states:
“Yet a single unifying principle underlies all four considerations. Courts apply heightened and strict scrutiny because they are properly suspicious of laws that discriminate based on traits that are often the subject of stereotypes and prejudice — traits like race, national origin, gender, and illegitimacy. We put a heavy burden on government to justify laws that rely on suspect classifications like those. It defies credulity to argue that courts have no reason to be similarly suspicious of laws that discriminate against gay people.”
The Petition observes that the question of heightened scrutiny was fully brief and argued in the Proposition 8 case, but was not decided because of the way the Court dispensed with that case. This new appeal would provide the Court with another opportunity to take on that issue, if it wants to.
In reviewing this Petition, I discovered only one outright error — attributing the dissent in the 2nd Circuit in Windsor v. U.S. to the wrong judge. Otherwise, it is a masterful job and one hopes would be very persuasive to the Supreme Court.
It is very clear that the only way the incredible string of marriage equality victories in the lower courts will ultimately pay off will be if the Supreme Court allows them to go into effect. They are all stayed at present awaiting definitive appellate resolution. If the Court decides it should duck this issue and dismiss the various petitions that come in, then the marriage equality rulings will go into effect piecemeal, circuit by circuit, and there may remain areas in the country where same-sex marriage remains unavailable, due to adverse circuit rulings or the lack of circuit rulings as remaining cases get bogged down. Peculiarly, as other circuits have put these cases on an expedited calendar, the 5th Circuit has dragged its heels, not scheduling oral argument in the Texas case, where an appeal was docketed on March 1. And there is no marriage equality appeal pending in the 8th or 11th Circuits, where things are still mired in the district courts or state courts.
As these Certiorari Petitions are being filed, the law reviews are starting to fill up with interesting articles positing various theories about how U.S. v. Windsor can be used to construct a winning marriage equality argument. Most of these articles seem to have been written last winter, before most of the 36 marriage equality rulings from lower courts. A few of the more recent ones make particularly interesting reading, and I hope that attorneys writing future Certiorari Petitions and merits briefs will take a look at them, because there are some new ideas about how to formulate the arguments that might prove helpful. I’ll list a few of the recent articles and suggest that the most recent, by Chris Bower, struck me as particularly ingenious:
Chris Bower, Juggling Rights and Utility: A Legal and Philosophical Framework for Analyzing Same-Sex Marriage in the Wake of United States v. Windsor, 102 Cal. L. Rev. 971 (August 2014).
Dale Carpenter, Windsor Products: Equal Protection from Animus, 2013 Sup. Ct. Rev. 183 (2013).
Perry Dane, Natural Law, Equality, and Same-Sex Marriage, 62 Buff. L. Rev. 291 (April 2014).
Michael Dorf and Sidney Tarrow, Strange Bedfellows: How an Anticipatory Countermovement Brought Same-Sex Marriage Into the Public Arena, 39 L. & Soc. Inq. 449 (Spring 2014).
Jeremiah A. Ho, Weather Permitting: Incrementalism, Animus, and the Art of Forecasting Marriage Equality after U.S. v. Windsor, 62 Clev. St. L. Rev. 1 (2014).
Christopher R. Leslie, Embracing Loving: Trait-Specific Marriage Laws and Heightened Scrutiny, 99 Cornell L. Rev. 1077 (July 2014).
Mark Strasser, Windsor, Federalism, and the Future of Marriage Litigation, 37 Harv. J. L. & Gender 1 (Nov. 2013).
Kenji Yoshino, The Anti-Humiliation Principle and Same-Sex Marriage, 123 Yale L.J. 3076 (June 2014).