Archives – March, 2013
By Scottie Thomaston
One of the more intriguing aspects of the oral argument in United States v. Windsor was the role Justice Alito played in the conversation. At least in reading the transcript, it was unclear at times whether Alito was hostile or even skeptical of Windsor’s arguments against Section 3 of DOMA. He put forward several hypothetical questions that more or less gave away that he believes Section 3 of DOMA is unconstitutional, and left little for the defenders of the law to latch onto.
Justice Alito is relatively new to the Court, and no gay rights case has been decided since he joined. During his confirmation hearings, it was discovered that he had joined a task force in college that recommended privacy rights for gays and lesbians, and decriminalizing same-sex intimacy. His history before joining the Supreme Court, though, was fairly socially conservative. He’s most well-known for authoring an opinion in the Third Circuit Court of Appeals in Planned Parenthood v. Casey suggesting that the entire law limiting abortion in that case should have been upheld; the Supreme Court ultimately disagreed with his dissent in the case, and re-affirmed that there is a “liberty” found in the Fourteenth Amendment that includes the right to an abortion. He had only addressed gay rights tangentially, in a case involving a gay student who had faced bullying. He ruled in favor of the student.
His first question in Windsor came in response to a comment from the Bipartisan Legal Advisory Group’s (BLAG) attorney Paul Clement that Congress created DOMA “with the traditional definition of marriage in mind” to use as essentially a template. Alito asks:
Suppose we look just at the estate tax provision that’s at issue in this case, which provides specially favorable treatment to a married couple as opposed to any other individual or economic unit. What was the purpose of that? Was the purpose of that really to foster traditional marriage, or was Congress just looking for a convenient category to capture households that function as a unified economic unit?
In other words, was the point of a law written to regulate a “marriage” or a “spouse” to further traditional marriage, as BLAG contends, (which would make DOMA’s use of the traditional definition seem to be common sense) or was it just for simplicity and convenience in laws intended to regulate certain households (which would, if true, seem to mean that DOMA actually complicates 1,138 federal laws)?
Clement, for his part, responded to that question by suggesting uniformity is important in defining something like marriage so that all states are treated the same, and Justice Sotomayor pointed out that it’s not uniformity, that “New York’s married couples are different than Nebraska’s” under BLAG’s view.
Later, Clement, in response to Justice Kennedy’s questions on whether Section 3 of DOMA involves questions of federalism, suggested that regulating marriage “is not what DOMA does”, rather, it defines a term (marriage) in order to provide certain benefits. Justice Alito then asked, essentially, why didn’t the definition in DOMA use a neutral term for providing benefits, instead of defining who is married?
He asked, and commented, specifically:
Well, Congress could have achieved exactly what it achieved under Section 3 by excising the term “married” from the United States Code and replacing it with something more neutral. It could have said “certified domestic units,” and then defined this in exactly the way that Section 3 — exactly the way DOMA defines “marriage.” Would that make a difference? In that instance, the Federal Government wouldn’t be purporting to say who is married and who is not married; it would be saying who is entitled to various Federal benefits and burdens based on a Federal definition.
My read of this question is that it’s as if he’s asking whether it’s even rational for Congress to define marriage as such, instead of creating benefits under a (nondiscriminatory) label unrelated to marriage, and using whatever definition it chooses, because avoiding defining marriage when states could and are changing the definition now, may make more sense. It could be that he was just asking a question that another Justice had, as a way to get a definite response to someone else’s worry, but in light of the rest of his questions during the argument, it came off as more skeptical of defining marriage in the way that DOMA does, across so many statutes.
When Solicitor General Donald Verrilli, Jr., made his presentation, Justice Alito asked him about DOMA’s effects on gay military servicemembers in same-sex marriages:
Can I take you back to the example that you began with, where a member of the military is injured. So let’s say three soldiers are injured and they are all in same-sex relationships, and in each instance the other partner in this relationship wants to visit the soldier in a hospital. First is a spouse in a State that allows same-sex marriage, the second is a domestic partner in a State that an allows that but not same-sex marriage, the third is in an equally committed loving relationship in a State that doesn’t involve either. Now, your argument is that under Federal law the first would be admitted, should be admitted, but the other two would be kept out?
When Verrilli suggested that the question is “whether Congress has a sufficiently persuasive justification for the exclusion that it has imposed” and that they could only find a justification under the most lenient form of rational basis the Court could use, Justice Alito said:
Let me take you back to the example. Your — your position seems to me, yes, one [gay spouse of a military servicemember] gets in, two stay out, even though your legal arguments would lead to the conclusion that they all should be treated the same.
There was then a discussion and Justice Scalia became involved in this line of questioning, and seemed to imply that it supports a view that the Government’s view of the merits is incorrect. But generally, if a Justice were hostile to an equal protection argument based on gay sexual orientation, it doesn’t seem to make sense that the Justice would use an example of gay military servicemembers married to a same-sex spouse and harmed by the law, and possibly by other laws. If nothing else, it’s counter-intuitive to any claim that there’s no valid argument against the law’s constitutionality, just because it’s counter-intuitive to invoke sympathetic figures if someone is making the opposite point entirely.
Most of Justice Alito’s questions to attorney Roberta Kaplan, arguing for Edith Windsor, involved Section 2 of DOMA, rather than Section 3. Section 2 is, of course, not at issue in this case. It’s the one that says a state does not have to recognize another state’s same-sex marriage unless it chooses to do so.
Alito asks a question about a hypothetical case involving, essentially, that section, and then adds:
What would be - would that be discrimination on the basis of sexual orientation? What would be the level of scrutiny? Would it survive?
Kaplan suggested that it would be a different case, and pointed to the Prop 8 arguments as more similar to the type of hypothetical Justice Alito was attempting to address. She then suggested it should be reviewed under a heightened form of judicial scrutiny.
That was the end of Justice Alito’s questioning at that point. He seemed near the end to get hung up on issues surrounding Section 2 and the question of the level of scrutiny that should be applied to a fact setting that could require a state to recognize another state’s marriage, if Kaplan’s or Verrilli’s arguments are accepted. Since he made no follow-up comments or asked no follow-up questions, it’s unclear whether that position would make him uncomfortable or if he sees it as a logical and necessary extension of the arguments made against Section 3.
In the end, it’s intriguing. Based on a fair reading of the transcript, he seems to be less hostile to arguments to strike down Section 3 of DOMA than would have been expected from a noted social conservative. Interestingly, he also seemed to be a lot less interested in the federalism arguments raised by Kennedy and others. He seemed to avoid addressing those at all in his questioning. He appeared to focus solely on the equal protection aspects of the case.
But his initial questions seemed to hint that he doesn’t think that laws which mention “marriage” or mention a “spouse” in a marriage necessarily were designed to further the opposite-sex definition of marriage. His questioning hinted that a better explanation is that laws addressing a marriage or a spouse who is part of a marriage are in fact meant to simply regulate unified households. If that’s true, it’s hard to see how the definition of marriage actually used in DOMA uncomplicates things. DOMA’s definition, based on answers to Justice Alito’s questions, seems to create another layer of regulation on top of the statutes that involve marriages and spouses.
In the event that at least five Justices believe the Court has jurisdiction in this case, we will know whether there are five votes to strike down Section 3 of DOMA on the merits, or if there are some surprises and potentially a broad vote to strike down the law. Either way, it doesn’t appear that Section 3 of DOMA will live much longer than June of this year.
By Jacob Combs
Towards the end of February, I had the opportunity to attend a performance of “The Laramie Project” cycle at the Brooklyn Academy of Music. From mid-afternoon to late evening that Saturday, I sat in the audience scribbling notes in the dark on a pad of paper as I watched a marathon performance of “The Laramie Project” and “The Laramie Project: Ten Years Later,” two provocative, experimental plays by director Moisés Kaufman and his Tectonic Theater Project that deal with the aftermath of the murder of Matthew Shepard.
Shepard, who in 1998 was beaten and left to die tied to a fence in Laramie, Wyoming, has become a symbol: his story is a lesson of bigotry and of the challenges faced by young LGBT Americans who live in socially conservative states where being gay is different and often threatening to those who are uncomfortable with sexual minorities. Matthew Shepard’s mother, Judy, is now a fierce advocate, and her activism helped lead to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which President Obama signed in 2009 and which helps protect LGBT Americans who have been the victims of hate crimes.
Kaufman and the other members of Tectonic developed “The Laramie Project” from a series of interviews they conducted in Laramie during the aftermath of Matthew’s death and the journal entries they wrote while visiting the town. Sitting in the dark theater, I was both deeply moved and deeply troubled, yet when I went back to look at the pages of notes I had taken, I was at a loss, filled with too many thoughts and struggling to bring them together into some cohesive argument. I put them away in my desk, promising to myself that I would get around to writing a piece on the play once I could process what I had experienced.
This week, as I sat in the press gallery of the Supreme Court listening to the oral arguments in two cases that could decide the constitutionality of California’s marriage equality ban Proposition 8 and the Defense of Marriage Act, which bars same-sex couples from federal marital benefits, I couldn’t help but be reminded of that evening at BAM. Here I was again, furiously jotting down notes, observing what is in many ways a performance, hoping that, in the end, I would be able to pull together some meaning out of the multiplicity of legal arguments that were being presented.
Supporters of marriage equality went into this week with high hopes that 2013 could be the year that Americans in all 50 states would be free to marry, regardless of the gender of their partner, and free to have those marriages recognized by the federal government. Those hopes were dimmed a bit after Tuesday and Wednesday’s oral arguments, which featured a court skeptical of DOMA, but wary of extending equal marriage rights to those states which currently ban them. At this point, it seems quite possible that after the Court rules by the end of June, there will be marriage equality again in California and DOMA will be gone. But that would still leave LGBT Americans in states without equal marriage rights in the lurch–Americans like Matthew Shepard, were he still alive and living in Wyoming today.
Just about two months ago, the Wyoming legislature considered bills that would legalize marriage equality, enact domestic partnerships and provide employment discrimination protections based on sexual orientation and gender identity. Although the domestic partnership bill passed a House committee and the nondiscrimination bill passed a Senate committee, both with bipartisan support and both marking historic firsts for the state, the two measures failed when they came up for full floor votes. In Wyoming, nearly 15 years after Matthew Shepard died, LGBT Wyomingites still have next to no legal rights under their state’s laws.
During oral arguments at the Supreme Court, Justice Ginsburg said that DOMA essentially creates two types of marriage in the United States, which she called “the full marriage, and then this sort of skim milk marriage.” But she also went further, saying that the federal benefits of marriage are “pervasive” and that they “touch every aspect of life.” When considering a marriage that provides no federal rights, she mused, one might ask, “what kind of marriage is this?”
Justice Ginsburg is touching upon something deeply important here, and her point underscores an element of the marriage equality discussion that is too often overlooked. DOMA doesn’t just denigrate the marriages of same-sex couples on the days when it blocks a gay couple from benefits like Social Security or hospital visitation rights, or on tax day when they have to file separate federal returns. It denigrates these marriages every day, because marriage affects these couples’ lives every day. To look at it from the other direction, a married couple isn’t just married on days where their marriage comes into play for some specific reason; they’re married every day.
Which brings me back, in a way, to Matthew Shepard. The Supreme Court this week appeared ready to punt on the central question of the constitutionality of state-based marriage equality bans, preferring instead to let the democratic process in individual states sort itself out. This wait-and-see approach may have both judicial and political wisdom in it, and it may be less discouraging for a young gay man like me, a California native who lives in New York and sees marriage equality coming back to his home state either this year through the action of the Supreme Court or next year through a ballot initiative that overturns Prop 8.
But it is a gross disservice to the gay, lesbian, bisexual and transgender Americans who live in states where wait-and-see could mean five, 10, or 50 years before they are treated equally under the law. This equal treatment goes far beyond marriage equality, which is the most high-profile LGBT rights issue of the moment, to the other myriad forms of discrimination Americans face based on their sexual orientation or their gender identity. No Americans should be denied the right to marry the partner of their choice, or be subject to losing their jobs for being gay or transgender, simply because of the state in which they are born. Matthew Shepard’s legacy has taught us this much: his right to liberty, to happiness, and indeed to life itself should never have hinged on the fact that he lived in Wyoming.
It’s not just that equality cannot and should never wait for majority support. Even more importantly, every day that they are on the books, laws that thwart equal treatment under the law and thus create in the minds and hearts of those against whom they discriminate–even if these laws were not passed out of an explicit desire to discriminate–a feeling of lesser-than status or second-class citizenship actively harm our nation and our LGBT brothers and sisters.
These laws are bad for the heart and soul of our country. One of the central reasons we have courts is to show us these laws for what they truly are–and sometimes, the courts must do so before we are ready to admit it.
By Jacob Combs
After the whirlwind that has been the last two days at the Supreme Court, it’s hard to point to any outcome in either the Prop 8 case or in Edie Windsor’s challenge to the Defense of Marriage Act as more likely than another. There was division on the Court as to the constitutional merits of both laws (unsurprisingly, the liberal Justices tended to express doubt about the laws’ validity while the conservative Justices leaned towards upholding them), and there was substantial time devoted to legal and procedural questions that could prevent the Court from even deciding whether the laws are constitutional or not. Here’s a brief look at the possible outcomes available to the Court in each case.
The Prop 8 case (Hollingsworth v. Perry)
A dismissal of the case as ‘improvidently granted’
Any Supreme Court watcher will tell you that the magic number at 1 First Street is five: with five votes, you can do anything; without them, you can do nothing. That’s true of the Court’s legal decisions, where five votes are required to create a controlling, majority opinion. But since the high court has discretion over which cases it reviews from the lower courts, there is a different magic number when it comes to whether or not the Court will take up a specific appeal. That number is four, and since four Justices can vote to hear a specific case (the technical term is called ‘granting a writ of certiorari), the Court can end up hearing a case that only a minority of Justices want to consider.
At Tuesday’s oral arguments, it looked like there might indeed have only been four votes on the Court to take up the Prop 8 case in the first place. Justice Sotomayor specifically mused whether the Court should let the issue of marriage equality percolate in the lower courts, to which Justice Scalia snippily responded that the Court had decided to take the case, so it didn’t matter what Sotomayor thought since that decision had already happened. But Justice Kennedy, the über-powerful swing vote, seemed almost eager to avoid the central constitutional questions in the case, asking lawyers on both sides of the issue if the case was properly granted. That could signal that it was only the Court’s four conservative Justices who voted in the first place to consider the Prop 8 case, and that there are five votes (the liberals plus Kennedy) for–as the legal terminology puts it–dismissing the case as ‘improvidently granted.’
Such a dismissal is uncommon but not unheard of, and it essentially means the Court decides that it was wrong to take up a particular appeal and dismisses the case without any decision on the merits. The significance of such a move is that it leaves the Ninth Circuit’s ruling in place, restoring marriage equality to California on the narrow grounds that it was unconstitutional for the state to extend equal marriage rights and then rescind those rights by a popular vote. Such a decision would be binding on everyone in California and would also also stand as precedent in the entire Ninth Circuit, meaning that no other state in the circuit with marriage equality (for now, only Washington) would be able to take away same-sex couples’ marriage rights through a ballot initiative.
A decision that the Prop 8 proponents do not have standing
A very significant gateway question in the Prop 8 case is whether the ballot measure’s official proponents–who intervened in the lawsuit to defend Prop 8 after the governor and attorney general of California declined to do so–have what is known as Article III standing to defend the law at all. Without getting too lost in the legal weeds, in order to have standing in a federal court, a party generally has to show that they’ve suffered a specific, personalized injury and are not simply putting forward a claim to some more generalized injury that does nothing to distinguish them from the general public.
When the Ninth Circuit addressed the constitutionality of Prop 8, it asked the California Supreme Court for an advisory opinion on whether the law’s proponents had standing under state law to defend the statute in court, and relied on the California court’s determination that the proponents could represent the interests of the state in seeing its laws defended to grant them Article III standing. (Neither the California Supreme Court nor the Ninth Circuit addressed the issue of personalized injury.) The Supreme Court, however, essentially has to decide this issue for itself. At oral arguments, there was a clear conflict for the Justices surrounding the competing questions of whether a law enacted by popular vote could be nullified if a governor or attorney general decided not to defend it and also whether any citizen of a state could step up to represent the state’s interest.
This means that the Supreme Court could very well decide that the Prop 8 proponents did not have standing to defend the law, meaning that the Court, just as if it had dismissed the case as improvidently granted, would not be able to reach the merits of the law’s constitutionality. The difference between these two decisions is that a ruling on standing would vacate the Ninth Circuit’s opinion, since the proponents would not have had Article III standing to defend Prop 8 in that court either. That would mean Judge Vaughn Walker’s broad district court ruling that Prop 8 violates the U.S. Constitution on both equal protection and due process grounds would finally be able to go into effect.
There’s some uncertainty about exactly what the outcome of such a decision would be, although it’s very likely marriage equality would come back to California. Judge Walker ruled that Prop 8 is unconstitutional throughout California and enjoined the governor and attorney general from enforcing it. Technically, however, a district court can only issue a remedy for the specific plaintiffs in the case. This could mean that Walker’s ruling would only allow the two same-sex couples who filed the Prop 8 lawsuit to marry, and that it would be up to California’s governor and attorney general to decide if they wanted to stop enforcing Prop 8 based on the district court’s decision. It’s likely there could be more litigation in the California state courts to determine exactly how Judge Walker’s ruling should be interpreted and put into effect, so a standing decision could create even more uncertainty.
A decision on the merits
If the Supreme Court decides the Prop 8 case was not improvidently granted and that the proponents do have standing to defend the law, it would then issue a decision on Prop 8′s constitutional merits. The Court could limit its ruling to California only, or it could institute marriage equality nationwide. It could also rule that Prop 8 is constitutional and that states can limit marriage to opposite-sex couples. Based on Tuesday’s oral arguments, only the first of those three scenarios appears likely. There did not seem to be five votes to explicitly uphold Prop 8, but neither were there five votes for a sweeping ruling establishing marriage equality nationwide. Justice Kennedy, in particular, seemed to hesitate in regard to a broader ruling, saying that he does not believe the social science surrounding marriage equality is conclusive yet or that the Court should dictate marital law to the states. He also seemed skeptical of the Ninth Circuit’s California-only ruling. From his apparent distaste for both upholding and invalidating Prop 8, Kennedy appeared eager not to address the constitutional merits of Prop 8.
The DOMA case (U.S. v. Windsor)
A ruling on standing/jurisdiction
In Edie Windsor’s case challenging Section 3 of the Defense of Marriage Act, which prohibits duly married same-sex couples from accessing federal marital benefits, there are two related procedural issues that could keep the Court from ruling on the merits of the law. In 2011, the Justice Department, acting on instructions from President Obama and Attorney General Eric Holder, announced it would stop defending DOMA in court and argue instead against the law’s constitutionality. The Bipartisan Legal Advisory Group (BLAG), a 5-member body in the House of Representatives made up of the Republican and Democratic party leadership, voted 3-2 on party lines to defend the law.
During Wednesday’s arguments, the Justices asked whether BLAG has standing to appear in court in defense of DOMA and whether the Court itself has jurisdiction to hear the appeal since the federal government (the defendant in the case) and Edie Windsor (the plaintiff) agree on the law’s merits and both want it to be struck down. On the former issue, most of the Justices seemed less than convinced that BLAG should be allowed to join the case as a party, since it is only a small subgroup of one house of Congress and because it falls to the Executive Branch under the U.S. Constitution to execute and defend the nation’s laws–or to do neither.
On the issue of the Court’s jurisdiction, the Justices asked if the United States could point to any specific injury present in the case that would allow it to seek an appeal of the district court decision. At the same time, the Justices also expressed concern about issuing a ruling that would allow parties to appeal cases in which both sides agree on the fundamental constitutional issues.
As in the Prop 8 case, if the Court were to rule both that BLAG lacks standing to defend DOMA and the federal government cannot appeal a decision that it agrees with, there would be no ruling on DOMA’s constitutionality. The Second Circuit’s dramatic decision invalidating DOMA would be vacated, and the district court’s ruling striking down the law and ordering a tax refund for Edie Windsor would be final. DOMA would still be on the books and it would be up to President Obama to decide whether or not to continue enforcing the law.
A ruling on the merits
Unlike during the Prop 8 oral arguments, Justice Kennedy did appear during Wednesday’s hearing to be leaning towards the position that there was a recognizable injury in the DOMA case (since a ruling in Windsor’s favor would force the federal government to refund over $363,000 to her) and that the Court could issue a ruling on the merits. There was a clear majority on the Court in favor of invalidating DOMA: the liberal Justices appeared open to striking down the law as a violation of equal protection, while Kennedy and Chief Justice Roberts (and, to an extent, Justice Alito) seemed open to ruling it an unconstitutional intrusion of federal power upon an area of traditional state sovereignty. Between these five to seven Justices, some majority decision against DOMA seems very likely.
A ruling striking down DOMA would only affect Section 3 of the law (since only that section was challenged in court) and would allow married same-sex couples across the country to access federal marital benefits. Of course, Section 2 of the law, which allows states to ignore marriages between same-sex couples obtained in other states, would remain on the books. (It’s also likely that even without Section 2, states would be free to continue to ignore same-sex couples’ marriage licenses from outside states.) This could very well lead to substantial legal confusion in terms of marital benefits, since a couple who married in Iowa (where marriage equality is legal) but moved to Missouri (where it is not) would possibly be eligible for some federal but no state benefits. As always, it would take further litigation to sort through these issues entirely.
The bottom line
To put it simply, there are several paths of action that the Supreme Court could take on the Prop 8 and DOMA cases. Absent an invalidation of DOMA and a ruling that extended equal marriage rights to same-sex couples in all 50 states, the post-decision legal terrain will probably look different but nearly as complicated as it is right now. There will undoubtedly be more lawsuits filed pertaining to the intersection of state and federal marital benefits if DOMA is struck down, and there could be further legal fights in California depending on the Court’s ruling on Prop 8. And, of course, equal marriage campaigns will continue to take place in state legislatures, at the ballot box, and in the state courts. There is plenty more to come.