The two cases before the Supreme Court this year which seem to have generated the most interest are the “gay marriage cases”: United States v Windsor in which the Court was asked to rule on the constitutionality of Section 3 of the Defense of Marriage Act (“DOMA”) and Hollingsworth v Perry where the Court is asked to determine whether California’s Proposition 8 ballot initiative violates the US Constitution’s equal protection clause. Both cases present a different set of complex jurisdictional issues in addition to questions regarding the merits of the case. Let’s discuss.
HOLLINGSWORTH v PERRY
In the 2008 election, a ballot proposal (“Prop 8”) was passed by California voters, amending the State Constitution so as to add a statement that “only marriage between a man and a woman is valid and recognized in California.” This amendment superseded a 2008 decision by the California Supreme Court (“Cal S Ct”) finding that the California State Constitution guaranteed same-sex couples the right to marry. The effect of Prop 8 was to prohibit the issuance of any new marriage licenses to same-sex couples although “civil unions” would still be allowed.
A gay rights group filed suit on behalf of several same-sex couples in Federal District Court (N.D.Cal.) alleging that Prop 8 violated the 14th Amendment of the United States Constitution which states that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” California Governor Arnold Schwarzenegger and the State Attorney General declined the opportunity to defend Prop 8 on the grounds that they believed it to be unconstitutional. In their place, the court allowed the official proponents of the initiative (the members of a group called “ProtectMarriage.com” headed by Hollingsworth) to argue in favor of the new provision.
On August 4, 2010 the trial judge ruled in favor of the plaintiff on the grounds that Prop 8 violated the 14th Amendment. The decision was appealed. Before deciding the merits of the case, the Ninth Circuit Court of Appeals certified a question to Cal S Ct asking whether the non-government proponents of a ballot initiative had standing to defend it when State officials refused to do so; Cal S Ct responded that it was well established that official proponents of such initiatives had the right to intervene in cases concerning the law in California State courts. Then, on February 7, 2012, the 9th Circuit panel hearing the appeal affirmed the District Court ruling striking down Prop 8. The Supreme Court granted cert.
The jurisdiction of federal courts is established by Article III of the US Constitution. In this regard, the Supreme Court has long held that Article III only grants the Court jurisdiction over “cases or controversies.” Famously, in response to a request by President Washington for a ruling on whether or not a proposed law would be constitutional, the Court responded that it was not vested with the power to issue “advisory opinions” to the other branches of government, but only to decide cases or controversies. The Court has also ruled that one does not have standing to challenge a law or government action in federal court solely by virtue of being a taxpayer or a citizen of the United States, but rather one needs to have a particular vested interest or to have suffered an injury as a result of the government action.
Having said all this, the Court questions whether in the case at hand Hollingsworth and the Prop 8 proponents have a particular interest (or a right) that gives them standing to defend the law in federal court or whether this is analogous to one of those “citizen suits.” Justice Ginsburg suggested that once an initiative is passed, the proponents do not have any “proprietary interest” in it and thus there is nothing distinguishing them from the rest of the State’s citizenry with regards to the new law. In response, Scalia stated that the attorney general does not have a proprietary interest in state laws, but he’s allowed to defend them because the law says he can. Following this line of reasoning, counsel for Hollingsworth made the argument that the State of California essentially delegates its right to defend state laws to the proponents of ballot initiatives. In response, Justice Sotomayor questioned whether this can be true even though (unlike a state official) the proponents hold no “fiduciary duty” to the State. Justice Kagan asked whether—hypothetically—the State could delegate its right to defend to any-ole-person.
As stated above, Cal S Ct ruled that state law recognizes that proponents have a right to participate in court cases concerning their ballot initiative, but Chief Justice Roberts stated this is not dispositive as California cannot create Article III jurisdiction. Cal S Ct said this right was integral to the initiative process: otherwise public officials could “veto” an initiative by refusing to defend it against attack. One can imagine cases where a majority of voters pass an initiative which is odious to state officials (maybe eliminating their salaries or removing someone from office). In such a case it stands to reason that the state government may not want to defend this new law, and if the proponents cannot do it who will? Likewise, in the case at hand, if Hollingsworth does not have standing before the Court to defend Prop 8 who would?
An issue addressed in both of these cases is what standard of judicial review the Court should employ when examining laws that adversely affect gay people. Depending on the group that is adversely affected (or discriminated against) by a state law, the Court may apply a higher or lower threshold test. In most cases, where the law disproportionately impacts members of a non-suspect class such as rich people, unmarried people or business owners, the Court applies a “rational basis” standard: if the law was passed to promote a legitimate State interest and we can think up any rational reason why the legislature may have believed the law might promote that State interest (N.B. that the law doesn’t actually have to accomplish what it was meant to do) that is good enough for the law to be upheld. On the other hand, the Court long ago decided that laws that disproportionately impact members of a specific race or religion are subject to “strict scrutiny” given that this is precisely the type of discrimination the 14th Amendment was passed to prevent. Under strict scrutiny, the law must serve a “compelling state interest” and there has to be no less discriminatory/harmful law the legislature could have passed in its stead to achieve the same purpose. The Supreme Court has only upheld one law subjected to strict scrutiny: this was in an ex post facto review of the Executive Order that led to the internment of Japanese Americans during WWII. More recently, the Supreme Court began applying an “intermediate” standard of scrutiny to laws that discriminated on the basis of sex/gender (as discussed in Ginsburg’s majority opinion in the VMI case). The Court has been somewhat inconsistent on what this standard of review entails, but one explanation requires the law serve “an important governmental interest” and that it be substantially related to that interest. The only other “quasi-suspect classification” (if the group of people disproportionately affected is race-based it is call a “suspect class”) officially recognized by the Court is legal distinction based on illegitimate status (i.e. bastards).
In the past the Court has declined to identify homosexuals/legal distinctions based on sexual-orientation as a quasi-suspect class, however in Romer v Evans (1996) it struck down a Colorado State Constitutional amendment which prohibited laws granting “special rights” to gay people using a rational-basis standard. The majority said that the law served no legitimate state interest and that it was motivated by animus (ill-will) towards gay people. In Lawrence v Texas, a law criminalizing acts of sodomy committed between two men was struck down on the grounds that it violated our constitutional right to privacy (a right whose existence was much debated). In that decision, the Court did not address the issue of whether the law violated the 14th Amendment’s equal protection clause.
Regardless of the standard applied by the Court, proponents of Prop 8 needed to prove that it advanced some legitimate State interest. Counsel for Hollingsworth argued (vaguely) that gay marriage was a relatively new institution and that through Prop 8 California was “putting the brakes on it” in order to see if it might have some detrimental effects on society. Justice Scalia offered up a specific example, stating that (at least arguably) it is unclear how children raised by same-sex couples may be impacted by their unusual upbringing. The liberal justices all argued that Prop 8 was irrelevant in this regards given that California state law allows gay couples to adopt and, moreover, it allows same-sex civil unions which are marriages in all but name. Indeed, Prop 8 does nothing but deny same-sex unions the label of “marriages,” and it is unclear how this could serve a legitimate state interest.
There is however a very thorny issue here: if the Supreme Court were to rule that Prop 8 violates the 14th Amendment will this mean that it would have to find all State Constitutional provisions prohibiting gay marriage to be unconstitutional? If it did so the Supreme Court would basically be ruling that gay marriages must be permitted and recognized throughout the 50 States, and I don’t believe the nine justices are ready to do that. When counsel representing Prop 8 opponents was asked whether he believed that the Court would have to find any State’s provision against gay marriage unconstitutional, he demurred and stated that California can be distinguished in that it already allows civil unions and is thus just withholding the label “marriage.” Several justices said that this would make an ironic basis of distinction given that it would be “punishing” California for the liberal laws it has already passed in regards to gay rights while shielding States that have no such laws from claims that their gay marriage ban is unconstitutionally discriminatory.
UNITED STATES v WINDSOR
Two women were married and their marriage was recognized by the State of New York. In 2009, one of the women died and the United States (which under DOMA §3 defines marriage as a legal union between one man and one woman and thus does not recognize the women’s marriage) assessed $360,000 in estate taxes against Windsor, the surviving member of the couple. If the United States recognized the women’s marriage the property being taxed would be considered martial assets and Windsor would not have to pay an estate tax.
Windsor filed suit against the United States in Federal District Court (SDNY) alleging that DOMA violated her constitutional right to equal protection under the law. (It is interesting to note that the 14th Amendment only applies to the States and not to the federal government. The Court has ruled however that equal protection extends to the federal government because it is incorporated into the concept of “due process” which is guaranteed by the Fifth Amendment: “Nor shall any person be deprived of life, liberty or property without due process of law.”)
In February 2011, the Department of Justice/Obama administration announced that they would no longer defend DOMA §3 because they believed it to be unconstitutional. However, the Obama administration also stated that it felt obligated to enforce the law until it was repealed or struck down by the high court. At this point the House Bipartisan Legal Advisor Group (“BLAG”) petitioned to intervene in the Windsor case in order to defend DOMA. This was allowed. The NY State Attorney General also filed a brief in which he argued that DOMA §3 was an intrusion on the State’s power to define marriage.
On June 6, 2012 the District Court judge ruled that under rational basis review the application of DOMA §3 at issue violated Plaintiff Windsor’s constitutional right to equal protection. An appeal was filed with the 2nd Circuit by BLAG as the “intervenor-defendant-appellant.” The United States also filed an appeal in its role as nominal defendant (despite the fact that it agreed with the lower court judgment) in order to facilitate a high court ruling on the law’s constitutionality. The 2nd Cir panel found that despite the withdrawal of its support for DOMA, the US had a right to appeal given that it continues to enforce DOMA and a ruling on the statute’s constitutionality “will have a considerable impact on many operations of the United States.” It cited INS v. Chadha where the Supreme Court states “when an agency of the US is a party to a case in which the Act of Congress it administers is held unconstitutional, it is an aggrieved party for purposes of taking an appeal…. The agency’s status as an aggrieved party… is not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.” In its decision upholding the lower court ruling, The 2nd Circuit also found that homosexuals were a quasi-suspect class due to a history of discrimination and thus laws which adversely affected them were subject to “heightened scrutiny.” The Supreme Court granted cert.
This is an odd case given that the United States is appealing but agrees with the lower court judgment, and (as with Hollingsworth in the Prop 8 case) the Court questions whether BLAG has standing. In order help decide the jurisdictional issues in this case the Supreme Court appointed Harvard Law Professor Vicki Jackson as an amicus curiae to argue the position that “the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case and that [BLAG] lacks Article III standing.…” During oral arguments Jackson reminded everyone that, despite the importance of the constitutional issue, if there is no Article III jurisdiction the Court cannot address the merits and must await another case.
Does the United States constitute an aggrieved party in this case even though it is asking the Court to affirm the lower court ruling? Justice Kagan brought up the fact that as a result of the lower court decision the government will need to refund Windsor $360,000 and, regardless of how it feels about doing this, it is in fact a monetary injury. But Jackson points out that the US is not asking the Court to remedy this injury and that this “injury” is exactly what it asked the lower courts to produce. On a related note, Jackson suggested that there is no adversity here as the US and Windsor are both in agreement and they both agree with the lower court’s decision.
The US is asking the Court to decide the question of DOMA’s constitutionality because, although the DOJ believes it is unconstitutional, the government continues to enforce the statute “out of respect for the Congress that enacted the law and the President who signed it and out of respect for the role of the judiciary in saying what the law is.” Moreover, the validity of DOMA §3’s definition of “marriage” affects 1,100 federal statutes which use the word. Justice Kennedy for one questioned why the Executive does not just quit enforcing the law if he believes it is unconstitutional while Justice Breyer suggested that the US here was no different from a trustee who feels a fiduciary obligation to carry out some provision of the trust whose validity is in dispute.
In light of the fact that the US’s main interest here is a Court ruling on DOMA’s constitutionality, and if one accepts that there is no adversity, this begins to look less like a case or controversy and more like a request for an advisory opinion.
In regards to BLAG’s standing, the Court questioned whether the House of Representatives has a right to step in to defend an Act of Congress when the DOJ refuses to do so. Breyer asked what interest legislators have in the case beyond “a public action to vindicate the interest of the law being enforced” (comparable to any other “citizen suit”) which is not recognized under Article III. Several justices questioned whether the House acting on its own has the authority to intervene to defend a statute, and whether BLAG (a group formed by the leadership of the House’s Republican majority) duly represents the House. BLAG is represented before the Court by Paul Clement, the ex-solicitor general who also argued the case against Obamacare. Clement argued that the House has (or should have) the authority to stand up and defend a statute in the rare cases when the Executive branch refuses to do so, and he points to a House resolution vote in January authorizing BLAG to continue to represent the House’s interests in this case.
There was some discussion of the standard of review to be applied for equal protection cases where homosexuals are the affected class. Solicitor General Verrilli argued that given the history of discrimination gay people should be considered a quasi-suspect class and intermediate scrutiny should be applied. In response to this, Kennedy suggested that rather than deciding this “fundamental question about equal protection” the Court should determine whether the statute is valid under rational-basis review or if there are other grounds for invalidating it. Justice Kagan stated that “we have a whole series of cases which suggest the following… when Congress targets a group that is not everybody’s favorite group in the world… we look at those cases…—even if they’re not suspect—with some rigor to say…do we think that Congress’ judgment was infected by dislike, by fear, by animus….” Clement and Breyer referred to this standard as “rational basis plus.”
Clement struggled to name legitimate state interests served by DOMA §3. He suggests we look at the time at which DOMA was passed, around the time the State of Hawaii was legalizing gay marriage, and says that Congress was concerned about the issue of whether other State’s would need to give same-sex marriages full faith and credit and about the other States and the Federal government “borrowing” Hawaii’s new definition of the “age-old institution” of marriage. Thus Congress wanted to “take a timeout” and passed DOMA in order to adopt a “cautious approach.” Most of this argument really speaks more to DOMA §2 which provides that other States will not be required to give full faith and credit to same-sex marriages.
In regards more specifically to DOMA §3, Clement suggested it was passed because (a) prior to 1996 whenever Congress had made reference to marriage in its laws it had in mind the traditional definition of marriage and did not foresee the extension to same-sex couples and (b) that this was passed in order to promote uniformity and a uniform definition of marriage particularly in regard to the provision of Federal benefits. The Solicitor General and counsel for Windsor both argued that the Federal government had always relied on the state definition of marriage. Justice Kennedy in particular thought that DOMA §3 raises Federalism issues as Congress was usurping “what has always thought to be the essence of State police power”—the power to regulate marriage. Ginsburg noted that with regards to States that recognize gay marriage, DOMA §3 dilutes the States’ decision in that Federal benefits and all the Federal laws that affect married people would not apply to these same-sex marriages (creating a “skim milk” version of marriage). Breyer pointed out that even prior to the advent of gay marriage there was no uniformity in that the various States have different laws regarding marriage (age, residency requirements), and he stated the opinion that for Congress to refuse to recognize a portion of the people married according to the laws of their State on any basis (e.g. denying married status to couples under the age of 18) would be arbitrary.
Clement points out that DOMA §3 only affects the definition of marriage for the purpose of federal law and thus claims it does not infringe on State power. Supporting this line of reasoning, Alito suggested the government could have replaced the word “marriage” in federal laws with something like “certified domestic unit” and then defined the term however it wished: if that would not raise federalism issues why should the use of the word “marriage” change anything? Ginsburg and Breyer both note how the 1,100 federal laws which reference marriage do not just involve benefits but touch on every aspect of people’s lives.
Finally there’s the issue of animus and the suggestion that that was the true motivation behind the statute. In regards to the passage of DOMA there’s a statement in the House Report that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” That seems pretty damning, but Clement points out that things written in the Congressional record are not dispositive in determining Congress’ rationale in passing a bill into law. Did all the Congressmen and Senators who voted for DOMA necessarily agree with that statement? On the other hand, Verilli at one point notes that the statute is not called the “Federal Uniform Marriage Benefits Act” but rather the Defense of Marriage Act. This too might speak to Congress’ motive in passing the law: weakening Clement’s uniformity argument, perhaps supporting Kennedy’s suggestion that the law is a federal usurpation of the State’s power to regulate marriage and may even be seen as further evidence of the animus suggested by Kagan and Congress’ desire to “express moral disapproval.”
I very much doubt the Court in Hollingsworth is going to issue an opinion that would open the door to invalidating all laws against gay marriage (and thus conversely making gay marriage the law of the land). The Court might dodge the bullet by stating that Hollingsworth has no Article III standing (as far as the counterargument that proponents of ballot initiatives must have the right to defend their provision when the State fails to do so, the Court could say that this may be allowed in State courts but not the federal judicial system). Another available option would be for the Court to invalidate Prop 8 but distinguish California’s situation from that of other States based on its allowance of same-sex civil unions, etc. (but would this distinction really hold back the floodgate?).
As far as upholding Prop 8, it doesn’t seem as though Hollingsworth or Scalia did a very convincing job of identifying a legitimate state interest. The Court could perhaps cite issues of federalism and say that the individual States have always had power (and thus have a legitimate interest) over regulating and defining the institution of marriage. This argument could perhaps stand up to rational basis review at the very least. And, on another practical/policy note, the fact that this was a ballot initiative passed by the State’s voters (as opposed to just a law enacted by the legislature) might also be a factor weighing in support of upholding the law.
In oral arguments for Windsor, the justices all sounded skeptical on the questions of jurisdiction although one should not presume that the Court’s final opinion on an issue can be garnered by the questions asked during oral arguments. Kagan’s argument that the government ought to be considered an aggrieved party for purposes of Article III by virtue of monetary injury resulting from the lower court rulings, as well as Breyer’s analog between the US in this case and a trustee who feels a fiduciary duty to enforce a debatable provision (and who thus has a vested interest in having its validity determined) are both somewhat persuasive. As for BLAG’s standing, there seems to be some precedent for the House intervening in suits to defend a statute although the manner in which BLAG was formed and authority was delegated seems irregular.
Assuming the Court decides this is a valid Article III case, it sounds as though five of the justices are ready to strike down DOMA §3 . The four liberal justices (Breyer, Sotomayor, Kagan and Ginsburg) all expressed disapproval, and Justice Kennedy (often thought of as the “tie breaker”) seemed to be seriously concerned with the federalist issues raised by the law (e.g. usurping the State’s traditional prerogative to regulate marriage). He also appeared to reject the uniformity argument and to be impressed with the broad scope of the 1,100 federal laws affected by the DOMA §3 definition.
It’s unclear where the Court stands, or whether it will even address, the issue of the standard of review for equal protection cases where gay people are the affected class. In these cases (as in Romer v Evans) the Court seems to seriously question whether these laws that discriminate against gay people serve any valid State interest or whether they are motivated by animus. In practice if not in word, this may seem a little more stringent than rational basis scrutiny and amounts to rational basis+. As to whether based on a history of discrimination gays are to be considered a quasi-suspect class justifying heightened/intermediate scrutiny, as Kennedy suggests in Windsor the Court can probably decide these cases without reaching that more fundamental question.