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Supreme timing, part 5: Why it’s better for DOMA to be heard at the Supreme Court before the Prop 8 trial
June 15, 2012
Community/Meta DOMA trials Marriage equality Prop 8 trial
This post is Part 5 of a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court. You can read Part 1, Part 2, Part 3 and Part 4 at Prop8TrialTracker.com.
By Jacob Combs
Yesterday, in Part 4 of this series, I argued that a Supreme Court decision striking down the Defense of Marriage Act and providing married gay couples equal protection under federal laws would be a game changer for future marriage equality litigation and could change the course of the Prop 8 trial itself, because it would eliminate the equivalence that currently exists between civil unions/domestic partnerships and marriage in some states.
With DOMA gone, civil unions that afford legal rights under state law will not afford federal rights, making them distinct from marriages, and thus in violation of the Equal Protection clause of the U.S. Constitution. A DOMA ruling, then, could set the ball rolling for many marriage victories in courts across the country, as state civil unions laws could be challenged on equal protection grounds. In today’s piece, the final one in this series, I’ll look at why the marriage equality movement should care about the order in which the Supreme Court takes up LGBT cases, and make the case for a course of action that makes our wins at the judiciary enduring and long-standing.
Why timing matters: The lessons of Roe v. Wade
As I’ve mentioned before in this series, the exercise of court-watching is an imperfect art, at best. Justices have ideological leanings, but they can, and often do, surprise. What is clear is that even though the Court is meant to be above politics and separate from the whims of the daily news cycle, the Supreme Court does not exist in a vacuum. The Justices are attuned to the pulse of public opinion in the country, and while they clearly do not base their decisions on those opinions, they certainly do keep them in mind. As often as possible, the Court tries not to put itself in front of public opinion, although it sometimes must in order to end blatant injustices.
The textbook case of the Court getting ahead of public opinion is Roe v. Wade, the landmark 1973 decision that ruled that women have a 14th Amendment right to privacy under the due process clause which extends to their decisions about whether or not to undergo an abortion. Roe is an almost 40-year old decision, and it remains a hugely disruptive and divisive issue in American politics. Earlier this year, Justice Ruth Bader Ginsburg, one of the liberal members of the Supreme Court, spoke of Roe v. Wade as an example of the Supreme Court moving “too far too fast”: “The court made a decision,” she said, “that made every abortion law in the country invalid, even the most liberal. Things might have turned out differently if the court had been more restrained.”
There are many in the LGBT legal community who believe that the Prop 8 case could become the marriage equality movement’s Roe v. Wade. They argue that a Supreme Court ruling granting full federal marriage equality and striking down marriage bans in over 30 states would divide the country into pro-marriage and anti-marriage camps and energize the most fervent activists on both sides. I don’t personally subscribe to this reasoning, primarily for the fact that public opinion on abortion in the United States has stayed relatively constant since Roe was decided whereas public opinion on marriage equality is currently undergoing a remarkable and rapid shift in favor of equal rights.
Nevertheless, it seems likely that the current Supreme Court wouldn’t want to get ahead of the country when it comes to marriage rights for gay and lesbian couples, especially since there are two significant pieces of data that contradict each other when it comes to gauging the state of the country’s opinion on the matter. On the one hand are public opinion polls, which continue to demonstrate at both the federal and state levels that attitudes towards marriage equality are shifting in favor of support, and are doing so at a rapid and accelerating pace. On the other hand, there is the fact that marriage equality has lost at the ballot box 32 times, most recently this May in North Carolina. Last month I wrote about an excellent piece by Equality Matters researcher Carlos Maza deconstructing the 32 states talking point, but that fact no doubt looms large in the Justices’s minds.
The truth is that the case brought by the American Foundation for Equal Rights against Prop 8 was brilliantly argued by Ted Olson and David Boies. The two made a strong, persuasive argument not just against Prop 8, but for why the U.S. Constitution should never allow a discriminatory law like Prop 8, one that denies citizens the right to personal liberty in love and marriage. That argument should be made over and over again, because it is dead on, and it is how we will win full marriage equality in the future. But due to a quirk of timing, the DOMA cases and the Prop 8 case are up for consideration in the same time frame, and examining them together shows that a ruling on DOMA before Prop 8 fits into a more powerful and broader future for marriage equality in our country.
A vision of the future of marriage equality in the United States
Yesterday, I argued that the DOMA case should be decided before Prop 8 because it fundamentally changes the arguments to be made against California’s marriage ban, and other bans like it across the nation. Today, I want to take that a step farther and look past the two cases to the future of marriage equality in general.
Marriage equality currently stands at a tipping point in the United States, will polling beginning to shift to the majority in our favor, DOMA and Prop 8 at play before the Supreme Court, and marriage referenda in three states in November. While the legislative and judicial tracks are currently moving in parallel and do effect each other, I believe that the legislative track will eventually (and within the next few years) be exhausted, and further victories will have to come through the courts. A Supreme Court ruling on DOMA this year, rather than Prop 8, puts the marriage movement on more solid footing for the future.
Marriage equality is already the law or on its way in the states which are politically most disposed to equal marriage rights (that is, the bluest states, with the exception being Iowa). The top tier of blue states that do not currently have marriage equality, in my mind, includes California, Maine, Maryland, Washington, Rhode Island, New Jersey, Hawaii and Oregon. Of these states, Maine, Maryland and Washington, of course, could have marriage by the end of the year through ballot measures, while California could see marriage return by Supreme Court intervention (or lack thereof) by the end of 2013.
New Jersey’s legislature passed marriage equality earlier this year, and now has until 2014 to overcome Gov. Chris Christie’s veto; a marriage equality case is also working its way through the state’s courts. Rhode Island is dragging its feet, but this November’s elections could change the makeup of the overwhelmingly Democratic legislature and make marriage equality a real possibility, since public opinion in the state is strongly supportive of equal rights. Litigation seeking marriage equality has been filed in Hawaii, and advocates in Oregon are considering a ballot initiative in the next few years. In short, these states are all moving towards marriage equality in one way or another, and within the next 5-10 years, it seems likely they will provide equal marriage rights to all couples.
Contrast that with the many, many states in the U.S. where marriage equality is going nowhere. In these states, the legal system will be the only recourse for gay and lesbian couples, who will continue to face discrimination under the law. Even more importantly, many of these states has constitutional bans on marriage equality rather than statutory bans, which are a particularly high hurdle for marriage supporters to overcome since doing so requires a popular vote by the citizens themselves.
Once marriage equality has taken root legislatively (or perhaps by popular vote, or through the judiciary) in the blue states, marriage equality in the U.S. will be in a new stasis, and the future of the movement will lie in the federal courts. Even more significantly, if DOMA has been struck down before we reach this new equilibrium, gay and lesbian couples in states with marriage equality will be treated equally by the federal government, and the case for a fundamental right to marriage for all couples regardless of sexual orientation under the U.S. Constitution will be even stronger.
This vision of the future is incremental and, in a way, frustrating. But when viewed through this longer lens, it becomes clear, to me at least, that the DOMA cases will have a huge impact on marriage equality in the U.S., whereas the Prop 8 case will be an important but less integral part of a natural progression. As a native Californian, I am as impatient as anyone for marriage equality to be returned to the Golden State, the state where I want to get married some day. But I am confident that we will be able to win marriage in California, either through a win in the Prop 8 case, or through a ballot initiative in 2014 or 2016, or through a new Prop 8 case filed after DOMA is struck down.
A Supreme Court ruling affirming a fundamental right to marriage equality will be most significant for those gay and lesbian couples living in states where waiting for public opinion to change in favor of marriage equality could take many years. Beating DOMA is central to laying the foundation for a future win before the high court that rules that, regardless of the state a couple lives in, they should be free to marry and should be provided the same rights as all other Americans.
An end to ‘separate but equal’
In the end, notwithstanding the many intricacies and technicalities of legal procedure and Supreme Court predictions, the argument that the Court should decide DOMA before Prop 8 is a remarkably simple one. Despite the incredible gains made by marriage equality advocates across the U.S., all of these developments were, unfairly, only half victories because of DOMA. Married couples in Massachusetts, New Hampshire, Vermont, Connecticut, Iowa, Washington D.C., New York and, yes, California, will only be truly married once DOMA is no longer law and the federal government treats all married couples equally.
Because of this, a DOMA decision would have an unprecedented effect on marriage equality in the United States, and would pave the way for new legal victories in states from California to New Jersey. In striking down DOMA, the U.S. Supreme Court would return American marital law to the place it has been since the founding of our country, and would continue to allow the states to proceed on their own terms and at their own pace towards full equality. It would be an inherently conservative decision, it would be in keeping with the American tradition of judicial restraint, and it would be the right thing to do. And it would also lay the groundwork for Proposition 8 to become simply a thing of the past, another reminder of the out-dated and un-American philosophy of ‘separate but equal.’
Having technical problems? E-mail equalityontrial AT couragecampaign DOT org for assistance!
47 Comments Leave a Comment
1.
Sagesse | June 15, 2012 at 12:43 pm
@
2.
sfbob | June 15, 2012 at 2:02 pm
I think you've pretty well convinced me that it would be best for us if a (favorable) decision on DOMA preceded a decision on Prop 8. Having said concluded that, the timing of the two cases is such that the Prop 8 case will likely reach the Supreme Court sooner than the DOMA case. The last appeals court procedure in Perry vs Brown is done while there is still an off chance that BLAG will try to get an en banc hearing of the Tauro decisions. Chances are not good for their success simply because three of the five judges in the First Circuit have upheld the original decision but it COULD happen and there is a 90-day (less a week) window for that appeal to be made while Perry would now go directly to the Supreme Court unless the defendant-intervenors improbably decide not to pursue it.
So the next question is, given the timing, is it probable that the Supreme Court will hear Perry first? And if they do, how do things stand?
It does seem likely to me that the Supreme Court will decline to hear Perry; it's a very safe bet for them to do that. Even if they decide to hear the case, nothing requires a broad ruling akin to Loving and I rather doubt they'd issue one. So we're again left with a decision that restores marriage equality in Calfornia–and only in California–or one that reverses the previous decision. I don't think that's at all likely though with this court you really never know. A reversal at the Supreme Court level would be a blow for our side but the practical effect would be an almost certain return to the California ballot in 2014 or, at the latest, in 2016. And in the interim, if the court then decides favorably on DOMA, then the California Supreme Court's ruling on the legality of Prop 8 would become questionable since there would be manifest differences between the rights offered by marriage and those conferred by domestic partnerships…unless of course the court were to rule that, in striking down DOMA, federal recognition of legal same-sex marriages would also require federal recognition of civil unions and domestic partnerships on the same basis. The latter does seem fairly improbable to me.
3.
Tony | June 15, 2012 at 4:24 pm
Any thoughts on the Supreme court striking down DOMA vs. congress wiping it from the books by passing the Respect for Marriage act? Depending on what happens in the November elections, that would seem to be another possibility.
4.
SoCal_Dave | June 15, 2012 at 4:42 pm
I have a question about sfbob's comment:
"And in the interim, if the court then decides favorably on DOMA, then the California Supreme Court's ruling on the legality of Prop 8 would become questionable since there would be manifest differences between the rights offered by marriage and those conferred by domestic partnerships…"
This makes perfect sense to me. Yet I can't imagine that there would be any kind of automatic reconsideration, would there? I mean, every time a new decision is taken, the courts can't really go back and revisit everything that was affected, can they? As much as I'd want to see that happen in this case, it seems like it would be kind of a chaotic mess.
Would we need to, and would we be able to, re-challenge Prop-8?
5.
goldentriangleglbt | June 15, 2012 at 5:08 pm
I Live in Beaumont Texas. I want to personally thank you for such a well written series of essays on this topic. We are seeing some changes here in the hearts and minds of the community. Beaumont has a very large legal community. Some of my non-glbt friends are finding your efforts here quiet illuminating. I have taken the liberty to provide links on my blog that is addressing GLBT issues in the South East Texas Area. They are full redirects to your blog site. again thank you for a great job that is pertinent to every gay American. Jacob Combs ROCKS!
6.
Leo | June 15, 2012 at 6:03 pm
AFAIK (from reading FRAP) the window for BLAG to petition for rehearing en banc is only 45 days, not 90 (and even that only because it's a case against the federal government, otherwise would be 14 days, like it was in Perry). If they don't request it, the 90 days window to go to SCOTUS expires sooner than in Perry.
7.
Leo | June 15, 2012 at 6:22 pm
I think it would be very odd if a change in federal law could retroactively change a California constitutional provision from an amendment into a revision (after all, that's what the California Supreme Court case was about). And what if Congress passed a civil union law giving the same benefits? Would the revision become an amendment again? I don't think it works that way.
8.
Bill S. | June 15, 2012 at 6:44 pm
Just a notice to everyone: France is holding their legislative elections this Sunday (June 17). The complete results will be published promptly at 8:00PM Paris time (2:00PM EDT / 11:00AM PDT). If the Socialists win (as they are expected to), then France will legalize gay marriage. The Socialists won the Presidency last month and the control of the Senate last October.
9.
Bob | June 15, 2012 at 7:52 pm
Go France!!!!!!
10.
Larry | June 15, 2012 at 8:31 pm
Hasn't BLAG showed signs of wanting the case to proceed rapidly? IIRC, they agreed with the plaintiffs (or at least didn't object to them) in trying to get initial en banc review both here in the 1st circuit and the Golinski case in the 9th circuit.. Coupled with the fact that a majority of judges already ruled against DOMA, it seems that BLAG would save their money and head straight for SCOTUS.
11.
Rob | June 15, 2012 at 8:49 pm
I am assuming that any future decision in the California Supreme Court would be based on the U.S. Constitution, not the State Constitution.
12.
Malisa | June 16, 2012 at 10:44 am
<img src=http://www.mobilediscount.info/ikea/ssi.jpg>I'd be interested in knowing the sequal of this story. <img src=http://www.mobilediscount.info/xbox/ssl.jpg>
13.
Seth from Maryland | June 16, 2012 at 10:52 am
language released by Secretary of State for Maine Ballot
— “Do you want to allow same-sex couples to marry?” —
14.
Bob | June 16, 2012 at 12:30 pm
https://secure.sherrodbrown.com/page/contribute/e…
Rachel Maddow the truth about money vs the people
15.
Bob | June 16, 2012 at 12:48 pm
interesting Canadian case, judge finds law violates plaintiffs constitutional rights,, she fast tracked the case so the plaintiff could particapte,,, while ruling the law invalid, she suspended the declaration for one year to allow parliament to draft new legistlation,,, while allowing the plaintiffs exemption to exercise their freedoms
http://www.windsorstar.com/news/judge+strikes+dow…
16.
Bob | June 16, 2012 at 12:56 pm
"The court has recognized that the government has no place at the bedside of seriously ill Canadians who have made firm and considered decisions about the amount of suffering to endure at the end of life and the level of care they will or will not receive in their final days."
Read more: http://www.vancouversun.com/news/judge+strikes+do…
17.
Bob | June 16, 2012 at 12:57 pm
similar to our equality battles,,, the religious right is opposed,,,, the Vatican issued a statement,,, yadayadayada,,,,,,,
18.
Bob | June 16, 2012 at 3:46 pm
Argentina makes strides in human rights, despite the majority being Catholics
http://www.theprovince.com/business/Urban+Argenti…
19.
Rich | June 16, 2012 at 3:59 pm
I was one of hundreds who collected signatures for this referendum. The wording we used specified that no religious minister or organization would be required to perform same sex marriages. The Secretary of State (republican) is pushing this statement absent the original clarification upon which we sought signatures. We have so many days (30?) to respond to the Secretary's proposal for the wording and to offer rebuttal and request a change. Any one from Maine, please contact the Secretary and encourage a more honest statement that assuages the concerns of those who still believe that religion is threatened.
20.
Michael | June 16, 2012 at 10:50 pm
This has been an absolutely wonderful, easily understandable series. Thank you so much Jacob Combs for this excellent piece. I agree now that DOMA should go first and I will pray that it does. And on a personal note, Jacob, I'm glad we have you on OUR side.
21.
John | June 17, 2012 at 2:36 am
Excellent series of posts! Thank you very much.
What I am very curious about, however, is how same-sex marriage will work in a post-DOMA world. If I were to marry my boyfriend in Iowa and then move to Texas (for example) where same-sex marriage was banned by a state constitutional amendment, would the federal government still treat us as married? What benefits would we receive (or not receive) as a result of living in TX vs. Iowa?
22.
John | June 17, 2012 at 2:39 am
Along the same lines, if we are traveling through a Texas and one of us has to go to the hospital, would the hospital treat us as married?
What if we lived in Illinois but worked in Iowa? Or lived in Iowa and worked in Illinois? How would health insurance and taxes work?
23.
Bill S. | June 17, 2012 at 11:06 am
THE SOCIALISTS HAVE WON AN ABSOLUTE MAJORITY IN FRANCE. France will legalize equal marriage within a year.
24.
bythesea | June 17, 2012 at 12:56 pm
Even given the maximal favorible election outcome (re-lection of Obama, Dems retake the House while holding on to the Senate, and assuming some sort of filibuster reform) I still think it is likely that SCOTUS hears it before repeal.
25.
Bob | June 17, 2012 at 3:13 pm
YES FRANCE!!!
26.
Reformed | June 17, 2012 at 3:18 pm
Need a pick me up?
http://sumofus.org/campaigns/jcpenney/?sub=taf
27.
Reformed | June 17, 2012 at 4:32 pm
3 . . . 2 . . . 1 . . . "one million" "moms" boycotts French fries. So obvious, but wanted to be the first. (tee hee).
28.
Jacob | June 17, 2012 at 5:04 pm
According to the new government, the law will be voted on before spring 2013 "if possible," and if possible well before then. Hooray!
http://www.francetv.fr/info/la-loi-sur-le-mariage…
29.
Sam | June 17, 2012 at 6:01 pm
Read this by the father of one of the Prop 8 challengers:
http://www.nytimes.com/2012/06/17/fashion/modern-…
30.
Ann_S | June 17, 2012 at 7:18 pm
Thanks for posting that link, Sam. Dominick Zarrillo's story was beautiful.
31.
Michael | June 17, 2012 at 8:28 pm
I am on duty at the fire station right now. My crew wanted to know why I had tears in my eyes. I let them read this story. I think they got it.
32.
Steve | June 18, 2012 at 6:54 am
You mean "freedom fries"
33.
Gregory in SLC | June 18, 2012 at 6:55 am
I see Sagesse posted it as well….yes….made me cry…. in a good way
34.
sfbob | June 18, 2012 at 8:13 am
We could and should re-challenge Prop 8 if it is upheld, particularly if Section 3 of DOMA is simultaneously overturned. All it takes is a live case and I'm sure AFER is more than capable of crafting one.
35.
sfbob | June 18, 2012 at 8:16 am
Nothing would happen automatically; a new case would need to be brought at the state level.
As for Congress passing a civil unions law, two things make that unlikely. First of all there is no will in the Congress for such a thing and I can't foresee it happening. Secondly, the whole reason why many feel DOMA the overturning of DOMA has a good chance of appealing to conservatives is that marriage law has historically been entirely the responsibility of the states. A federal civil union law is as likely to end up being challenged in court as is DOMA.
36.
Jamie | June 18, 2012 at 8:39 am
The federal government always has 90 days to appeal a decision of a federal court.
37.
Leo | June 18, 2012 at 8:47 am
Is this written somewhere? I'm looking at F.R.A.P. 40(a)(1).
38.
Jamie | June 18, 2012 at 9:01 am
The California Supreme Court said in their ruling that they would strike down any provision that denied rights to gays and lesbians and noted that Proposition 8 did no affect any rights, just a word. If DOMA is repealed then Proposition 8 suddenly withholds rights from gays and lesbians, and would be unconstitutional under existing CASC rulings.
39.
Eric | June 19, 2012 at 8:39 am
There are pleanty of provisions that deny equality to gays and lesbians that the CSC has left in place. One example is the case currently against CalPERS for excluding same-sex spouses and registered domestic partners from enrolling in their long term disability plan. Another is the state's refusal to allow spouses or registered domestic partners to be buried in veterans' cemeteries.
40.
Eric | June 19, 2012 at 8:41 am
Most "Christians" don't even learn the bible, let alone civics.
41.
Eric | June 19, 2012 at 8:43 am
Why would it be any different than the way the current law works with regards to states recognizing each other's marriages? As for the IRS, everything I've seen is based on state of domicile,
42.
John | June 20, 2012 at 5:07 am
So if I travel through another state, I am still married according to the federal government. Okay. If I *move* to another state, then am I unmarried suddenly? So to get a divorce, all I would need to do is move to a state that does not recognize same-sex marriage and never move back to a state that does?
Somehow I think it's more complicated than that, especially once the federal government begins to recognize SSMs. And I have yet to see information that describes how this would work.
43.
Larry | June 20, 2012 at 6:43 am
Another hypothetical. Say I marry a man in Iowa. Then I head to Nebraska. Can I marry a woman there immediately or would that be polygamy? Or polygamy according to Iowa, but not Nebraska or the federal government. It's ridiculously complicated.
44.
Straight Dave | June 20, 2012 at 8:54 am
I'm sure Neb would have no problem letting you get married, since you're "not" already. Afterwards, NE thinks you have one spouse (a woman), IA thinks you have 2 and might arrest you, but the Fed govt thinks you have none. Meanwhile, *you* think you have one spouse (a man!!), because you honestly know you had no business getting married a 2nd time. You had to effectively lie on your NE application.
That's why DOMA section 2 is not far behind, once we get the other issues out of the way.
A state's interest in polygamy is essentially spousal protection (or so I believe). Therefore, ignoring valid marriages they don't approve of enables a state to abdicate its spousal protection responsibilities. And that's good for whom…??
They really didn't think this through very well, did they?
45.
Straight Dave | June 20, 2012 at 8:58 am
Sorry, actually the Fed's think you have one spouse (a woman), but only if you claim her….to the detriment of your hubby.. just…..so…..dumb….
46.
Larry | June 20, 2012 at 9:25 am
So Iowa would arrest me for a crime I committed in Nebraska? I'd think they wouldn't have jurisdiction.
Even more fun is if I marry a man in Iowa, then move to Wisconsin and marry a woman. Iowa can try and arrest me for marrying a woman in Wisconsin because I committed polygamy. Wisconsin can try and arrest me for marrying a man in Iowa because I entered a marriage elsewhere to avoid a Wisconsin law. So both states want to charge me with crimes I committed in other states. Federalism in action!
47. Prop 8 Trial Tracker &raq&hellip | November 8, 2012 at 2:56 pm
[...] series arguing why the Supreme Court should hear the DOMA cases before the Prop 8 case, I concluded with this look at the future of marriage equality advocacy: Marriage equality is already the law or [...]
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