December 10, 2012
By Jacob Combs
Last Friday, in a late afternoon order, the U.S. Supreme Court announced that it will take up the Prop 8 case and the Windsor challenge to DOMA and issue rulings on the two laws’ constitutionality by the end of its 2013 session. Following the order, we had a great Q&A session with readers and Shannon Minter and Chris Stoll of the National Center for Lesbian Rights (if you missed it, check it out here) about just what the Court’s move really means. Here’s a (fairly) detailed look at how important the Court’s additional questions of standing could be to the eventual resolution of the two cases in the spring.
The Court’s Friday order not only makes clear that it is interested in considering not only the core constitutional arguments at the center of the Prop 8 case (now called Hollingsworth v. Perry) and the Windsor v. USA challenge to DOMA, but also several key procedural issues presented by the two cases. In the Prop 8 case, the Court’s order reads, “The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.”
In effect, what this means is that the Supreme Court will consider arguments on the central constitutional question presented to the Court by the proponents of Proposition 8: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.” This question is substantially similar to the one presented to Judge Vaughn Walker during trial in a Northern California district court. Judge Walker ruled that California’s denial of marriage equality to same-sex couples violates those couples’ equal protection and due process rights. In his opinion, Judge Walker wrote that while strict scrutiny (a more searching constitutional test used to protect the rights of disadvantaged minorities) was designed specifically to safeguard the liberties of groups such as gays and lesbians, Prop 8 fails to pass even the much more lenient rational basis test.
The Supreme Court’s additional question in the order granting review of the Prop 8 case, however, means that the Court might not even reach the equal protection question at all. Federal courts are only allowed to hear challenges brought by parties that have what is called Article III standing–essentially, a direct stake in the case by which they can demonstrate that an adverse court ruling would affect them. Because the official defendants in the Prop 8 case (the Governor and Attorney General of California at the time, as well as the clerks of Alameda and Los Angeles counties) declined to defend the constitutional amendment in court, the official ballot proponents of the measure sought and were granted the opportunity to defend the law in their stead.
In arguments before the Ninth Circuit Court of Appeals, the plaintiffs in the Prop 8 case argued that the proponents of Prop 8 do not have standing under federal law to pursue the case–implicitly arguing that the circuit court and indeed the Supreme Court lack jurisdiction in the case. The Ninth Circuit asked the California Supreme Court to issue an opinion on whether or not the proponents had standing under state law to defend Proposition 8 (which the state court said they did), and then used this opinion to grant the proponents federal standing and declare Prop 8 unconstitutional.
The Supreme Court’s additional question regarding standing, however, means that if the high court decides the proponents do not have standing, the Court cannot issue a ruling on Prop 8′s constitutionality and the Ninth Circuit’s decision becomes moot, leaving the district court ruling in place (but possibly limited in effect to only the couples who brought the suit). The Court has demonstrated skepticism in the past regarding the standing of ballot proponents when it comes to defending those measures in court, but it is free to rely on the California Supreme Court’s ruling (as the Ninth Circuit did) to support a decision granting the proponents Article III standing.
In the DOMA case, the Supreme Court specifically decided to hear the Windsor challenge, brought in November 2010 on behalf of Edie Windsor, an 83-year old New York resident forced to pay over $363,000 in estate tax upon the death of her wife, Thea Spyer, whom she wed in Canada in 2007. In June 2012, a New York circuit court ruled in Windsor’s favor using the most referential rational basis test and citing the lack of Second Circuit precedent regarding the proper level of scrutiny for gays and lesbians in its decision to do so. A few months later, in October 2012, a 3-judge panel of the Second Circuit of Appeals ruled 2-1 to uphold the district court’s ruling, but based its decision on a heightened level of constitutional scrutiny.
The Supreme Court’s decision to take up the Windsor challenge, as opposed to the other three DOMA cases before it, probably stems from the fact that the Court very strongly prefers to hear cases that have been through the appellate court process and ruled on by a circuit court. Two of the DOMA cases (Golinski and Pedersen) were appealed to the Supreme Court before they could be decided on by the circuit courts, making the other two cases Windsor and Gill much more likely candidates for review. Regarding the Gill case, however, which arose from Massachusetts and the First Circuit, which struck down DOMA using the so-called rational basis plus test, it is extremely likely that Justice Elana Kagan had a hand in preparing the government’s position on the case during her time as Obama’s Solicitor General. Because she would have had to recuse herself from hearing the Gill case (setting up a possible 4-4 split in the Court’s decision, which would not stand as binding precedent), Windsor remained as the most likely choice for the Supreme Court to hear.
The main constitutional question presented in the DOMA cases (and Windsor specifically) is this: “Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.” Section 3 is the part of DOMA which created an official federal definition of marriage that was limited to opposite-sex couples. Every lower court to consider DOMA in the four cases that are now before the Supreme Court declared the law unconstitutional, and it is very likely the Supreme Court will issue a ruling on the merits by June.
Still, the Supreme Court’s order granting review of the Windsor case did raise two additional procedural questions in the case: “Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.”
The issues here are similar, but distinct, from the standing issues behind Prop 8. When DOMA was first challenged in the federal courts, the Obama administration filed briefs in defense of the law, arguing in favor of its constitutionality. In February 2011, however, the administration reversed course, with Attorney General Eric Holder writing in a letter to the Republican leadership of the House of Representatives that, in his view (as well as President Barack Obama’s), gays and lesbians were deserving of heightened constitutional scrutiny and that therefore DOMA was unconstitutional. The Justice Department also announced it would no longer defend DOMA in court. In light of this decision, the House’s Bipartisan Legal Advisory Group (BLAG), composed of both parties’ House leadership, voted on party lines to step in and defend the law in Court.
The two procedural questions posed by the Court to the parties in the Windsor case are separate but related. In the first, the Court questions whether the fact that the federal government, which is the official defendant in the case, agrees with the circuit court’s ruling essentially obviates the need for the Supreme Court to address the constitutional question at hand. Supreme Court precedent recognizes what is called a “case or controversy” requirement for the courts to consider a challenge: in the Windsor order, the Court questions whether or not the agreement between the official plaintiffs and defendants that the Second Circuit’s ruling is correct means there is no controversy for the high court to decide.
The second question is quite similar to the standing question in the Prop 8 case. Since the official defendants in the Windsor case have declined to defend the law and BLAG has asked to intervene on its behalf, there is an open question as to whether BLAG can demonstrate the kind of direct, specific stake in the outcome of the case to have standing to appeal the Second Circuit’s decision with the Supreme Court.
If the Supreme Court were to rule on the procedural issues in either case, the district court decisions striking down DOMA and/or Prop 8 would stand. If the Court rules that the proponents of Prop 8 do have standing, or that the BLAG/Justice Department history regarding DOMA does not preclude it from hearing the Windsor case, the legal challenges will be decided on the merits and the Court will decide the constitutionality of one, or both, of the laws.