June 17, 2013
By Jacob Combs
Last week, University of Georgia School of Law professor Sonja West–who formerly clerked with Supreme Court Justice John Paul Stevens–wrote a piece in Slate with a tantalizing headline: ‘What Is Anthony Kennedy Thinking?’
As court watchers and LGBT advocates flock to SCOTUSblog (or even the real SCOTUS itself) on Monday and Thursday mornings this June, waiting to find out what the putative swing justice thinks of marriage equality, West’s theory is that we might all be looking at Kennedy’s possible reasoning the wrong way–in fact, she argues, he’s already told us what we might expect. Here’s the central nugget from West’s Slate article:
In March, during the oral argument about California’s same-sex marriage ban, Kennedy said that he was “trying to wrestle” with a “difficult question” about the constitutionality of same-sex marriage. The question on his mind was whether prohibitions on same-sex marriage are a form of gender discrimination. The lawyer defending the ban, Charles Cooper, responded that this was a case about sexual orientation, not gender, and the argument quickly moved in a different direction.
But we shouldn’t dismiss Kennedy’s question about gender discrimination too hastily. The court’s precedents on gender might offer Kennedy the conservative compromise he is looking for: a way to recognize a constitutional right for same-sex marriage in a limited way.
First, the legal reasoning. The Fourteenth Amendment’s equal protection clause–nor surprisingly–requires similarly situated classes of individuals to be treated equally. When a plaintiff sues the government and alleges that a law violates equal protection, they are essentially saying that it treats one class of individuals differently from another class without any reasonable justification for doing so. In the Proposition 8 case (and the Defense of Marriage Act case, as well), the natural ‘class’ distinction upon which to hang the suit is sexual orientation, since the laws mandate different treatment for same-sex couples compared to their opposite-sex counterparts.
In their original complaint challenging the constitutionality of Prop 8, however, the two California couples who brought the lawsuit also argued that the statute discriminated on the basis of sex as well as sexual orientation. Here’s the relevant argument from the couples’ complaint:
Prop. 8 also violates the Equal Protection Clause because it discriminates on the basis of sex. It distinguishes between couples consisting of a man and a woman and couples consisting of individuals of the same sex. Thus, the limitation on civil marriage depends upon an individual person’s sex; a man who wishes to marry a man may not do so because he is a man, and a woman may not marry a woman because she is a woman.
This is what West is talking about: there is an argument to be made against Prop 8 that it creates two classes of individuals (those who can marry men and those who can marry women) and then allows or bars entry to those groups on the basis of sex.
As West points out, this isn’t a new idea. The very first American judicial ruling on marriage equality–the one, in fact, which would contribute a great deal to the eventual passing of the Defense of Marriage Act–was a 1993 decision by the Hawaii Supreme Court which adopted the sex discrimination argument for marriage equality.
In fact, this argument isn’t even new to the Prop 8 case itself. In his 2010 ruling invalidating Proposition 8, district court judge Vaughn Walker addressed the plaintiffs claims pertaining to sexual orientation and sex like this:
Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.
Other district courts who have considered the constitutionality of marriage equality bans have remained unconvinced that such laws can be considered discriminatory on the basis of sex. In Jackson v. Abercrombie, Judge Alan Kay wrote that Hawaii’s marriage law “is gender-neutral on its face; it prohibits men and women equally from marrying a member of the same-sex.” Similarly, Judge Robert Jones upheld Nevada’s marriage equality ban in Sevcik v. Sandoval, writing, “the Court finds that for the purposes of an equal protection challenge, the distinction [in Nevada's laws] is definitely sexual-orientation based.”
As West points out, a law isn’t necessarily constitutional just because is applies equally to men and women. That very argument was made in the landmark Loving v. Virginia case in favor of anti-miscegination laws, which supporters said did not constitute equal protection violations because they prohibited both white and black people from marrying partners of a different race. To put it simply, the Supreme Court disagreed.
West is right in saying that Justice Kennedy might find it easier to strike down a law like Prop 8 on gender discrimination grounds, because it would save him the trouble of having to decide whether or not sexual identity should be added to the list of classifications which courts are especially careful to consider in equal protection cases.
But a gender-discrimination based ruling which did not also recognize issues of sexual orientation discrimination–while it might indeed mean the end of Prop 8–would be a bit of a cop-out. Sexual orientation is clearly one of the categories that should be given extra protection by the judiciary. Justice Kennedy might not be ready to say that yet, but it’s a fact that will become more and more unavoidable. The gender discrimination track might put off that determination, but it almost certainly won’t do so for very long.
June 17, 2013
By Scottie Thomaston
The Supreme Court released five opinions this morning, but they did not release the decisions in the marriage cases, United States v. Windsor, and Hollingsworth v. Perry. There are at least two more schedule dates for the release of opinions: this Thursday, June 20, and next Monday, June 24. In addition, the Court could add extra days next week, possibly Wednesday and Thursday, but they won’t announce the extra days until the end of this week. As things stand now, there are fourteen remaining opinions and two more scheduled release dates.
Last week, the Court released decisions mostly on cases argued in April. Today, there were some April and January cases, but there were two from the March sitting. Justice Breyer issued his second majority opinion from that sitting, while Justice Scalia issued his first. As EqualityOnTrial reported previously, there were ten cases argued in March, so with observers suggesting that majority opinions tend to be evenly distributed among Justices for each sitting, that would mean a Justice has two opinions for March. It now appears that Justice is Stephen Breyer. Justices Kennedy and Alito have yet to write a majority opinion for March, and the Chief Justice has not written one, either. There are three cases left from March: the two marriage cases, plus Mutual Pharmaceutical v. Bartlett. Assuming the pattern holds and everyone gets a majority opinion (and to be sure, any speculation about an opinion’s authorship is pure speculation until it is issued) we may see two different authors in the Prop 8 and DOMA cases. It could be reasonably assumed that Justice Alito won’t have a majority opinion in either case, which would leave Justice Kennedy and Chief Justice Roberts.
As usual, we’re following developments at the Court and we’ll be here Thursday morning to report on which cases are decided that day.
One note: on some previous opinion release dates, including today, there have been several reports noting that Ted Olson and other lawyers involved in the marriage cases are at the Court awaiting opinions. The lawyers in these cases only receive notice that a case has been decided after the decision is issued, so no lawyer involved has any advance knowledge; anyone who shows up at the Court is likely doing so to find out if their case is among the ones decided any given day.
June 14, 2013
By Scottie Thomaston
The Supreme Court has said that next Monday and Thursday more opinions in argued cases will be released. There are nineteen outstanding ones. As usual, we won’t know which opinions are ready until then; the standard practice is that the Court releases opinions when they are finished, and only then. There’s no reason to believe they are just holding some opinions. Given the days left in the term (which Court watchers expect will end on Thursday, the 27th) the Court could release at least four opinions at a time until the end.
The Court hasn’t said which days it will release opinions in the last week of June, but this week they issued opinions on Monday and Thursday, and next week it’s the same schedule. Assuming that schedule holds, we would see opinions Monday, the 24th, and Thursday, the 27th. Without official notice, of course, this is speculation, but it’s based on past history as well. Either way, we could get the opinions in the marriage cases next Monday or Thursday. The following week still seems the most likely but with nineteen opinions left there will be a flurry of them coming out and the Court may decide they are ready.
Since none of the opinions yesterday were from the March sitting, there are still five outstanding cases from that sitting. Five decisions have already been released (the four moderates each have one majority opinion, and Justice Thomas has one as well.) As we wrote previously, the Court likes to distribute its majority opinion assignments evenly, so Chief Justice Roberts and Justices Alito, Scalia, and Kennedy will likely have one of the remaining opinions, with one Justice writing two of them. (As we have written, speculation on opinion assignments shouldn’t be taken as definitive; we don’t know for certain who will write a majority opinion until it’s handed down.) But it would seem unlikely that one of the moderates would write a majority opinion in one of the marriage cases, based on the fact that they’ve already written one, and the fact that in order to get a fifth vote, they would need a more conservative member of the Court to join the majority; a Justice who is conservative may not want to join a far reaching opinion written by a more liberal Justice. One other note: majority opinion authors can change; it’s rare, but sometimes views change and Justices leave the majority. This could complicate the opinion drafting process if it were to happen. But there are several reasons an opinion may take a long time to draft, including that a case (like the DOMA case) may require decisions on several legal issues.
If the marriage cases aren’t released next week, one interesting thing to keep tabs on is whether any are from the March sitting. According to SCOTUSBlog’s statistics, the March cases still awaiting decisions are Arizona v. The Inter Tribal Council of Arizona, Inc., Mutual Pharmaceutical Co. v. Bartlett, and Federal Trade Commission v. Actavis. At least in terms of opinion distribution, if one of those are released it will give Court watchers a better idea of whether the Court is diving majority opinions evenly for that sitting, or whether they are more randomly given out.
The oldest opinions still awaiting a decision are Fisher v. University of Texas at Austin (October sitting) and Vance v. Ball State University (December sitting). Those seem more likely to be released before the marriage cases simply because the latter cases were argued in late March.
As always, we won’t have definitive answers until the decisions come down. The Court is infamously secretive, there are rarely any leaks, and even the dates the Court schedules to release opinions won’t be known until the Court is ready for people to know.