December 12, 2012 at 10:36 am EST | by Chris Johnson
5 questions as Supreme Court considers marriage
Supreme Court, Ted Olson, National Equality March, Edith Windsor, DOMA, Prop 8, Proposition 8, gay marriage, same sex marriage, marriage equality, gay news, Washington Blade

There are many legal questions to ponder as observers await the Supreme Court decision on Prop 8 and DOMA. (Washington Blade photos by Michael Key)

In the wake of last week’s announcement that the Supreme Court will hear lawsuits challenging California’s Proposition 8 and the Defense of Marriage Act, observers over the next several months will wait on pins and needles for what may be the most significant ruling on LGBT rights in history.

Here are five questions that advocates are pondering as they await decisions in Hollingsworth v. Perry, the challenge to Prop 8, and Windsor v. United States, the lawsuit against DOMA.

1. Will the Supreme Court overturn same-sex marriage bans in all states?

By taking up the Prop 8 case, as opposed to letting stand a more narrow ruling from the U.S. Ninth Circuit Court of Appeals that applied only to California, the court has an opportunity to make a ruling that not only says the same-sex marriage ban in California is unconstitutional, but marriage bans in all states throughout the country are as well.

David Boies, a co-counsel representing plaintiffs in the lawsuit on behalf of the American Foundation for Equal Rights, said during a conference call last week justices would produce a ruling that’s more expansive than California if they decide the Prop 8 case on its merits and find it violates the U.S. Constitution.

“That would mean there would be a fundamental right to marry in every state in the country because obviously the federal constitution applies to every state in the country,” Boies said.

Much in the same way that the 1967 ruling in Loving v. Virginia ended bans on interracial marriage in all states, such a sweeping decision from the Supreme Court in Prop 8 would require the 41 states that don’t have same-sex marriage on the books to allow gay couples to marry. Not only would marriage equality be restored to California, it would be extended to the estimated 646,000 same-sex couples throughout the country.

Jon Davidson, legal director at Lambda Legal, said this outcome is one of several possible ways the Supreme Court could rule if justices find a constitutional right to marry under either the due process clause or the equal protection clause.

“Either finding that we share the fundamental right or finding that it violates equal protection generally to not allow same-sex couples to marry when different-sex couples can would extend the right to marry to all 50 states,” Davidson said.

Still, the general consensus among legal experts is that the court isn’t likely to reach this outcome when it’s possible for them to reach a ruling on more narrow grounds that would just affect California or a limited number of states.

Doug NeJaime, who’s gay and a law professor at Loyola Law School, posited that since California allows domestic partnerships but not same-sex marriage, the court could produce a ruling requiring all eight states that offer either domestic partnerships or civil unions to provide full marriage rights for gay couples. Those states are California, Illinois, Rhode Island, Delaware, Hawaii, Oregon, Nevada and New Jersey.

“The middle course would be one that says states that have allowed same-sex couples to have comprehensive domestic partnerships or civil unions don’t have an adequate justification for preventing them from marrying,” NeJaime said. “That would affect more than just California, but it wouldn’t affect every state.”

2. What happens if the Supreme Court upholds both Prop 8 and DOMA?

In what he might be considered the opposite scenario compared to the situation described above, the Supreme Court could also deal a devastating blow to LGBT advocates by upholding either or both Prop 8 and DOMA.

A loss for LGBT advocates in the court in the Prop 8 case would mean they would need another voter-initiated ballot campaign to repeal the measure ballot, much like the divisive and expensive 2008 campaign that led to its passage by voters.

John O’Connor, the newly appointed executive director of Equality California, said “everything’s on the table” for discussion in the event that the Supreme Court determines the ban on same-sex marriage in California is constitutional.

“The question about would we go back to the ballot — it’s absolutely a possibility,” O’Connor said. “The timing and the tactics and all of that remain to be determined between now and the time the decision comes down but it’s absolutely a priority for us to plan that.”

Asked whether he’d rule out the possibility of going back to the ballot in 2014 at this point, O’Connor replied, “Absolutely not. I wouldn’t rule it out. That’s definitely a possibility that we’ll be considering.”

Similarly, a decision upholding DOMA would mean that Congress would have to act to repeal DOMA — mostly likely using the Respect for Marriage Act as the vehicle to undo the law. That would be a difficult task as long as Republicans remain in control of the House.

Rep. Jerrold Nadler (D-N.Y.), the chief sponsor of the Respect for Marriage Act, said in a statement he intends to work with Congress to build support for the legislation even before the court renders a decision on DOMA.

“As the Supreme Court reviews DOMA, I will continue to spearhead the participation of Members of Congress who believe that DOMA is unconstitutional in the Windsor case,” Nadler said. “At the same time, I will keep working with my colleagues to increase support for the Respect for Marriage Act, my bill to repeal DOMA and remove official discrimination from our legal code.”

3. Will the U.S. government weigh in on the Prop 8 lawsuit?

Amid news that the Supreme Court will take up the Prop 8 lawsuit, a new call has emerged for the Obama administration to weigh in on the lawsuit to assert a constitutional right for same-sex couples to marry.

Ted Olson, co-counsel for plaintiffs in the Prop 8 case, said during the conference call last week that participation from the Obama administration in the litigation would have “great effect” on the outcome of the case.

“I would hate to predict what the United States government is doing, but given the stand the president of the United States and the attorney general of the United States made with respect to marriage equality, we would certainly hope that they would participate,” Olson added.

Although President Obama asserted his personal view in May that same-sex couples should be able to marry, the Obama administration hasn’t yet answered the question of whether that’s a guaranteed right under the Constitution. The Obama administration could participate by filing a friend-of-the-court brief along with other parties, or less likely, by asking to intervene in the case.

Asked Tuesday during a White House press briefing about the Obama administration’s position on the Prop 8 case, White House Press Secretary Jay Carney declined to comment, saying, “For comment on the court’s actions on that case, I would point you to the Department of Justice. As you know the administration is not a party in that case, and I just have nothing more for you on it.”

Following the briefing, Tracy Schmaler, a Justice Department spokesperson, told the Washington Blade, “No updates at this point.”

Richard Socarides, a gay New York advocate who’s called on Obama to take an active role in supporting marriage equality, said arguing in favor of the constitutional right to marry — for all states and not just California — is “a logical extension” of the position already articulated by the administration when it determined DOMA was unconstitutional.

“If you apply that [heightened scrutiny] test that they advocate to any of the 30 states that have constitutional amendments that ban gay marriage, then all of those state amendments go out the window,” Socarides said. “So, obviously, that’s very important to us, and that’s the government position, and I think it’s important that they say so clearly rather than trying to duck it.”

Additionally, Socarides said the Obama administration won’t be able to run from the issue because justices will likely ask U.S. Solicitor General Donald Verrilli Jr. or whomever is representing the administration during oral arguments about its position on Prop 8.

“They’re kidding themselves if they don’t think some judge isn’t going to ask them,” Socarides said. “During the argument of the DOMA case, [Samuel] Alito or [Clarence] Thomas or [John] Roberts or [Antonin] Scalia is going to say to them, ‘If we apply the test you are advocating to Proposition 8, what would happen?’ They’re going to get asked this question. That’s what’s silly about this.”

Lambda’s Davidson agreed that a friend-of-the-court brief from the Obama administration would have an impact on the Supreme Court.

“They’re more likely to read a brief from the solicitor general than from other parties,” Davidson said. “And I think that they care what another branch of government says to them, so I think it will be significant. I don’t think they will decide a certain way just because the executive branch says so. They will make up their minds, but to have one branch of government telling another what they think the outcome would be, they’d pay attention to that.”

But the notion that participation from the Obama administration would be helpful to convincing justices to overturn Prop 8 isn’t universal.

Nan Hunter, a lesbian law professor at Georgetown University, said the Justice Department has articulated that laws related to sexual orientation should be subjected to heightened scrutiny and an additional brief wouldn’t have much sway.

“I don’t really think it makes much difference, frankly, to the court,” Hunter said. “The political alignment of the Obama administration is very clear on this, so I don’t really think it’ll make much difference.”

4. What happens if the Supreme Court denies standing to anti-gay forces in the lawsuit?

In addition to announcing that it would take up cases challenging Prop 8 and DOMA, the Supreme Court also called for attorneys involved in the lawsuit to answer questions about whether certain parties involved in the lawsuit have standing to present their views before the court. The standing issue will be resolved as part of the final ruling the Supreme Court makes before its term expires in June.

For the Prop 8 case, the standing question is singular: Do anti-gay groups that helped pass Prop 8 at the ballot have the right to defend the law in court because California Gov. Jerry Brown and Attorney General Kamala Harris have declined to do so? That was the opinion of the Ninth Circuit, which determined could defend the law after the group’s standing was certified by the California Supreme Court.

But in the DOMA case, there are issues of standing on both sides. The court asks parties to respond to whether the court has standing to hear the DOMA case because the U.S. Justice Department, the party that won the case at the district court, appealed the case as opposed to the losing side. Additionally, the court asks if the House Republican-led Bipartisan Legal Advisory Group — which took up defense of DOMA after the Obama administration announced it would no longer do so — has standing to defend the law.

The questions open up the possibility for the Supreme Court to strike down Prop 8 on technical grounds without getting into the merits of the anti-gay ban. It could assert that anti-gay groups don’t have standing to defend the law, nullifying the Ninth Circuit decision and leaving in place retired U.S. District Judge Vaughn Walker’s decision finding that same-sex couples in California have a guaranteed right to marry under the U.S. Constitution.

NeJaime said asking about the standing issue in the Prop 8 case may be an attempt for the court to open the door to striking down the same-sex marriage ban without ruling on the merits of the case.

“This court has been interested in standing for a long time,” NeJaime said. “The conservatives on the court have consistently cut back standing, so it’s not shocking to me that the court is at least interested in that standing question, and I also think it could be slightly strategic so that there is this other issue in the case that would allow the court to avoid a ruling on the merits if they decided that they don’t want to do that.”

The question of what would happen if parties lack standing in the DOMA case gets a little murkier because the issue affects both the plaintiffs (the Justice Department) and the defendants (BLAG). On Tuesday, the Supreme Court announced that it had hired Vicki Jackson, a Harvard lawyer, to argue that neither the Obama administration nor BLAG have standing to petition the court in the case.

Still, the consensus among legal experts is that justices would likely conclude both parties have standing in the DOMA case to evaluate the law on its merits, even though many raised questions about BLAG because it’s a five-member committee and not reflective of the position of Congress, or even the House, as a whole.

Hunter said precedent exists for the Supreme Court to hear a case in which the Justice Department has declined to defend a law and members of Congress have taken up defense of the statute instead.

“The reason here that I think five members of the court will reach the merits in the DOMA case is that the practical necessity for them to do so is just overwhelming,” Hunter said. “I just don’t see them allowing a federal statute to just kind of evaporate in this situation without consideration of the merits. I’m cautiously optimistic that when they do consider the merits, they will find DOMA unconstitutional, but my hunch is that the standing question is more likely to end up being important in the Prop 8 case than it will be in the DOMA case.”

5. What would happen if the Supreme Court applied heightened scrutiny to its ruling?

Another outcome in the cases that would be beneficial to the LGBT community is a determination by the Supreme Court that laws related to sexual orientation should be subjected to heightened scrutiny, or a greater assumption they’re unconstitutional.

The Supreme Court has never declared that laws related to sexual orientation should be subjected to a higher level of scrutiny as it has for race, national origin, gender and alienage even in high-profile cases such as Lawrence v. Texas, which struck down state sodomy laws throughout the country, and Romer v. Evans, which struck down Colorado’s anti-gay Amendment 2. Still, the belief that sexual orientation laws merit this level of scrutiny is the view held by the Obama administration and the U.S. Second Circuit of Appeals, the court from which the DOMA case was appealed.

Legal experts said such a ruling from the Supreme Court in which justices applied heightened scrutiny would benefit lawsuits challenging other anti-gay laws throughout the country — whether they be the Arizona law stripping away domestic partner benefits from state employees or the Tennessee law prohibiting municipalities from passing non-discrimination ordinances.

While it seems that making a decision on laws related to sexual orientation are subjected to heightened scrutiny would automatically institute the first outcome enumerated in this piece — the invalidation of all restrictions throughout the country — legal experts say that might not be the case.

NeJaime said the application of heightened scrutiny in the DOMA case would make it more likely for them to strike down Prop 8 as well, but it wouldn’t necessarily apply to same-sex marriage bans elsewhere.

“They could apply heightened scrutiny to Prop 8, which they could frame as a very specific question, and then it would take a future case to apply heightened scrutiny to some marriage ban, like a ban in Arkansas where there’s no domestic partnership,” NeJaime said.

Some observers have speculated that the Supreme Court selected the Windsor case as the vehicle to determine the constitutionality of DOMA because that’s the only case in which a federal appeals court has ruled the anti-gay law is unconstitutional by applying heightened scrutiny to the statute.

But Hunter disputed that notion and said the decision to take up Windsor is the result of U.S. Associate Justice Elena Kagan’s involvement in the other lawsuit in which an appeals court made a ruling against DOMA — the consolidated case of Gill v. Office of Personnel Management and Commonwealth of Massachusetts v. Department of Health & Human Services — when she was U.S. solicitor general and the Obama administration was still defending the law in court.

“What makes the most sense is to have all nine justices participate in that decision, and Kagan can’t participate in Gill.” Hunter said. “I think they were waiting for a second court of appeals to produce an opinion, and I think they would have taken whatever case wasn’t Gill. It was sort of anything but Gill, and that’s purely because of the Kagan recusal problem.”

Supreme Court, gay marriage, same sex marriage, marriage equality, Proposition 8, Defense of Marriage Act,

(Washington Blade photo by Michael Key)

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson is a member of the White House Correspondents' Association. Follow Chris

  • A few clarifications and a nitpick:

    First, Vicki Jackson is not just a "Harvard lawyer." She's a Harvard law professor and expert on federal courts and federal jurisdiction, including the law of standing.

    Second, this article states (as of the time of my comment): "The court asks parties to respond to whether the court has standing to hear the DOMA case because the U.S. Justice Department, the party that won the case at the district court, appealed the case as opposed to the losing side." The Supreme Court did not specify why it asked the parties to brief the standing issues; this is speculation. It's also imprecise. The U.S., represented by the DOJ, was a defendant at trial in Windsor; although it agreed with Edie Windsor that DOMA Section 3 is unconstitutional, the U.S. was still charging her inheritance tax they would not charge someone they recognized as a surviving spouse. That action was held unconstitutional by the trial court. Thus, technically, the U.S. was a LOSING party at trial, so it should be held to have the authority to file a notice of appeal to the U.S. Court of Appeals for the Second Circuit.

    The real question about the Solicitor General's standing to represent the U.S. then is whether the government's agreement that DOMA Section 3 is unconstitutional means there was not a "case or controversy" between Windsor and the U.S. in the sense that SCOTUS has held Article III to require for there to be federal jurisdiction. SCOTUS should conclude there is, given its precedent in INS v. Chadha, which struck down a law letting a single house of Congress veto an attempt by the government to deport someone, a law that the President there concluded was unconstitutional.

    Third, DOMA has 2 operative provisions. At issue in Windsor and the other cases SCOTUS has been asked to review is Section 3, which requires the federal government to refuse to recognize valid legal marriages of same-sex couples. Section 2 of DOMA, in contrast, purports to give states permission to ignore marriages of same-sex couples from other states, as well as court judgments based on such marriages. A ruling in Windsor striking down Section 2 would not necessarily invalidate Section 3, which might be thought to serve different governmental interests than Section 2. A bill repealing Section 3 of DOMA thus might still be necessary even if the Court rules against Section 2.

    Finally, the nitpick: The wording of question 5 seems a bit off: "What would happen if the Supreme Court applied heightened scrutiny to its ruling?" Levels of scrutiny under the Equal Protection or Due Process Clauses are applied by courts to laws or government actions, or by higher courts to lower court rulings themselves alleged to violate the Constitution; levels of scrutiny are not applied by courts to their own rulings as a general matter. So, it would be better to ask "What would happen if the Supreme Court applied heightened scrutiny in its ruling?"

    David B. Cruz
    Professor of Law.
    University of Southern California Gould School of Law.
    Los Angeles, CA 90089-0071.

  • Dear Mr. Cruz

    I know that sometimes in law, when B is dependent on A, and A is struck down, that B is not automatically struck down. But, on the grounds of constitutional law, the Full Faith and Credit Clause which Section 2 of the Defense of Marriage Act conflicts,

    Article IV, Section. 1.

    Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

    Wouldn’t any act of Congress that is of lesser tier, Constitutionally and legally, have to yield to the supremacy of the higher tier of law? For example, a statute of the USC would not supersede a conflicting Constitutional statute. Further, in state law, a statute or constitutional amendment to a state constitution which conflicts with a Federal Constitutional statute would be in conflict and therefore invalid if it directly infringes on the legal rights of a citizen which The Constitution permits a citizen to exercise. So I do not see how Section II of DOMA would hold up if a gay couple in Washington State who gets married and moved to Idaho could not be recognized as married. Washington says their married, provides them a legal certificate of marriage which entitles them to both state and Federal benefits related to marriage, the State of Idaho would have no grounds in which to deny them State benefits or Federal Benefits of any kind. The Full Faith and Credit clause would coerce the State of Idaho to recognize that Marriage Certificate, grant them access to the legal benefits defined to married couples in The State of Idaho, and would be required to grant them access to the courts of that state in relation to Family Court, Divorce Court or Probate Courts. To deny that access would be illegal under the Full Faith and Credit Clause.

    That’s my argument. I don’t see how this basic reasoning would be incorrect under these set of conditions.

    • (I do not like gendered honorifics such as “Mr.”)

      I did not say that Section 2 is constitutional, just that the reasoning that might invalidate Section 3 would not necessarily apply to Section 2 (or at least that’s what I meant, as Ken Upton correctly pointed out). Some scholars’ view when the law was enacted in 1996 was that Section 2 was either superfluous or unconstitutional. Congress claimed that Section 2 was an exercise of its power to “prescribe … the Effect” of things related to marriage. Some people argued that the power to prescribe effect is not the power to dictate that there be NO effect. The Supreme Court has interpreted the Full Faith and Credit Clause to apply more stringently to Court judgments than to laws of other states; marriages are effected by administrative act, not judicial proceeding, and thus probabky subject to a “public policy” exception; there is no case law holding that State B was required by the Clause to recognize a marriage from State A. On the law around the Full Faith and Credit Clause, see my article Sexual Judgments: Full Faith and Credit and the Relational Character of Legal Sex, But even if DOMA Section 2 were within Congress’s Full Faith and Credit power, it would still have to satisfy constitutional equal protection requirements, which would be harder to do if the Supreme Court were to embrace intermediate scrutiny for sexual orientation discrimination when it decides Windsor.

      David B. Cruz
      Professor of Law
      University of Southern California Gould School of Law
      Los Angeles, CA 90089-0071

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