Filed under: DOMA trials
By Scottie Thomaston
As the end of the Supreme Court term and the release of its final opinions gets closer, more legal experts are weighing in with predictions and thoughts on which outcome in the marriage cases seems the most likely. As EqualityOnTrial has reported, there are lots of complicated options with different outcomes (ranging from good to relatively bad) and just looking at Hollingsworth v. Perry, the Prop 8 case, there’s no consensus on what will happen, though most people who have commented on the case believe the result will be narrow.
Two others recently offered their own thoughts and predictions: Laurence Tribe, who has done LGBT rights work before (most notably arguing before the Supreme Court in Bowers v. Hardwick, but also arguing National Gay Task Force v. Board of Education a year prior to Bowers) wrote commentary on the cases, while former Justice John Paul Stevens made his predictions while speaking at an event in Arlington.
Tribe, a Harvard Law professor, believes the decisions in both the Prop 8 and DOMA cases will be narrow, but he suggested that the result of the Court’s decisions would be that neither law will remain standing:
Regarding the pair of cases currently pending in the Supreme Court, my hunch – and it is only that – is that the Court will narrowly conclude that the DOMA [Defense of Marriage Act] issue is properly before SCOTUS on the merits notwithstanding the solid reasons to doubt that BLAG [Bipartisan Legal Advisory Group of the U.S. House of Representatives] is a proper representative of Congress and that the Court will hold DOMA’s Sec. 3 unconstitutional by a vote of 5-4, with Justice Kennedy relying heavily on the kinds of federalism considerations that Judge Boudin found persuasive in CA1 [U.S. Court of Appeals for the First Circuit] but with the more liberal four justices relying squarely on the equality component of fifth amendment due process.
As to Hollingsworth, however, I doubt that the Court will conclude that Chuck Cooper and the other private proponents of Prop 8, all lacking a fiduciary duty to California, have Art. III standing to defend it on the merits in the Supreme Court (despite what the state’s highest court concluded) and will dismiss that case on standing grounds, leaving in place Judge Walker’s statewide injunction against Prop 8 but setting no nationwide precedent. Alternatively, despite the Rule of Four, I wouldn’t be too surprised to see the Court dismiss cert as improvidently granted, leaving CA9’s [U.S. Court of Appeals for the Ninth Circuit] decision in place but again setting no nationwide precedent.
In other words, he suggests the Court will reach the merits in Edith Windsor’s DOMA case somehow ruling in favor of its jurisdiction to decide the case, and there will be five votes for striking down Section 3 of DOMA. It’s not clear whether he thinks there will be 5 votes for a holding on the reasoning for striking down the law: since he writes that four will vote based on equal protection with Justice Kennedy voting based on federalism, that would divide the rationale. But it’s worth nothing that the First Circuit’s opinion expressly denied that they were striking down the law based on federalism alone. Ultimately Judge Boudin’s opinion struck down the law based on equal protection, but he said explicitly that the federalism concerns presented by the law, whether or not they make the law unconstitutional under the Tenth Amendment, certainly make the law more suspect constitutionally. If Justice Kennedy adopts Boudin’s opinion then there would be five votes for an equal protection holding, even if he’s the only Justice who addresses the federalism concerns Boudin found only partially relevant.
He also writes that he believes it’s reasonable that government officials in California and in the federal government declined to defend these laws, and still enforced them. But his piece suggests that different accommodations should have been made to ensure adequate defense of the laws. He briefly writes that BLAG is probably not a party with Article III standing to defend the constitutionality of DOMA, but he doesn’t elaborate. There were arguments in some of the briefs that since BLAG is simply a “legal advisory group” for one body of Congress it lacks standing: they can’t claim to represent even the full House, and even less so the entire Congress, since the Senate did not authorize Congress’ involvement in the case. And though the BLAG is made up of five members who took a vote to decide to get involved in the case, only its three Republican members voted to get involved. The two Democratic members opposed involvement. This year the House rules added a rule suggesting that the BLAG can “continue” to represent the House, but there was no authorization by the full House before this year. So without knowing Tribe’s reasoning, the briefs in the case offered some evidence that the standing issue is questionable here.
He also answers Justice Scalia’s question at oral argument, when he asked “when” same-sex marriage bans “became” unconstitutional:
On the one question of just when a ban on same-sex marriage “became” unconstitutional, however, my answer would be that, from a rather formal perspective, it was unconstitutional from the moment the Fourteenth Amendment was ratified although, from a more evolutionary and thus realistic perspective, it is still in the process of becoming unconstitutional in the sense that the constitutional status of challenged action is a function of an evolving partly political/cultural and partly legal development rather than something akin to the “fact of the matter.” Asking when this kind of ban “became” unconstitutional is like asking when the ban on interracial marriage “became” unconstitutional: the answer might be said to be 1967, when Loving v. Virginia was decided, but it also might be said to be 1868, when the Fourteenth Amendment was ratified. The question isn’t of the same metaphysical character as, e.g., the question of when the oceans of the earth were formed, or when the big bang occurred, or when George W. Bush became President of the United States.
Justice Stevens joined the Supreme Court as a moderate Republican, but when he retired, he was considered the Court’s most liberal member. He has agreed before that the issue of gay rights can be viewed as the civil rights issue of this era. And he hasn’t said whether marriage bans are unconstitutional but has noted the country’s movement on the issue. The report on Justice Steven’s comments doesn’t dwell on the things he said about the marriage cases, so there is not much to report, but his predictions were not far off from Tribe’s:
This is similar to most predictions we’ve seen lately: narrow results but still the end of these anti-gay laws. Either way, based at least on the oral arguments, it appears the votes could be closer than expected.
By Scottie Thomaston
The people of the state of Virginia are now joining the ranks of those who support marriage equality (most recently, majority support was found in Michigan, and in Nevada in February.) The recent polls seem to match the overall trend reported by Pew Research and Gallup: Americans in all age groups increasingly support same-sex marriage.
Metro Weekly has the report on the Washington Post‘s Virginia poll:
A Washington Post poll of Virginians regarding various social issues shows that a majority of Virginians believe same-sex marriage should be legal, a finding that challenges other polls in recent years showing that marriage equality still lacks broad support across the commonwealth.
According to the Post poll, 56 percent of Virginia adults believe it should be legal for gay and lesbian couples to get married, while 34 percent think it should be illegal. Ten percent expressed no opinion. Among registered voters, those who thought it should be legal led by a similar margin, 56 to 33 percent.
The poll was conducted by telephone from April 29 to May 2 among a random sample of 1,000 adults in Virginia, including 887 registered voters and users of both conventional and cellular phones. Among registered voters, the poll has a margin of error of 4 percentage points.
According to the poll results, independents and Democrats are showing majority support (which is the same in most recent polls on the issue) but Republicans are not. Women and non-whites support marriage equality more strongly than men and whites. And 72 per cent of 18-29 year olds in the state support marriage equality, but only 22 per cent in that age group are in the opposition.
Metro Weekly interviewed the executive director of Equality Virginia about the poll:
In an interview with Metro Weekly, James Parrish, the executive director of the nonpartisan LGBT rights organization Equality Virginia called the results of the Post poll “exciting to see.”
“It’s definitely nice to see, but it’s something we expected,” Parrish said. “Support in Virginia mirrors what’s going on nationally. Hopefully, this will set Virginia up to be able to remove the marriage amendment and allow same-sex couples to marry in the state.”
Parrish noted that the strongest movement in support for LGBT rights has occurred among Republicans. He said that polling by Equality Virginia has also seen that shift among Republicans in its own polling, which explains why a bill supporting workplace nondiscrimination protections in state employment garnered stronger-than-usal support from Republicans this past legislative session. That measure passed the state Senate 24-16 before being killed in committee by members of the House of Delegates.
The Advocate also notes, via a Talking Points Memo report, that Arizona voters (who banned same-sex marriage by voter initiative in 2008) now support marriage equality by a fairly strong margin:
Even Arizona, where the legislature is currently considering a bill that would forbid transgender people from using the restroom that corresponds with their gender identity, is feeling the push toward marriage equality. Although Arizona voters overwhelmingly passed a constitutional amendment banning same-sex marriage in 2008, 55% of voters now favor marriage equality, according to a Rocky Mountain Poll released Wednesday and published at TalkingPointsMemo. Opposition to the freedom to marry among registered voters is just 35%, according to the poll. Support for marriage equality was high among women, Latinos, and voters under the age of 55. But even among voters older than 54, 46% support marriage equality, while 40% of the demographic is opposed.
TPM notes that support in the state transcends race, gender, and age:
Large majorities of women, Hispanics and voters under the age of 55 support same-sex nuptials. A plurality of voters over the age of 54 — 46 percent — supports gay marriage, while 40 percent of the group is opposed.
All of these states have LGBT-related lawsuits pending in federal court: Michigan’s anti-gay amendment is being challenged in federal court, while a case involving gay rights in Arizona is pending before the Supreme Court: Brewer v. Diaz involves an attempt by Arizona Governor Jan Brewer to rescind domestic partnership benefits from same-sex state employees; she asked the Court to allow her to continue denying the benefits while the case is pending in the lower courts. No action has been taken in either case, and since the Court will decide cases involving Prop 8 and DOMA, no action is expected until June at the earliest.
In Virginia, the state’s attorney general has appealed a decision striking down the “crimes against nature” (sodomy) law as unconstitutional under 2003′s Lawrence v. Texas. The full appeals court declined to rehear the case.
In these states, it seems unlikely at best that marriage equality will be legalized without court action. Although voters are changing their minds, many of the state officials are socially conservative. But these lawsuits will probably proceed after the Supreme Court rules next month.
- Lawmakers in Minnesota who are supporting the marriage equality bill are considering a last-minute change to the bill, the addition of the word “civil” in front of “marriage”, in hopes of gaining the votes of legislators who might otherwise argue that religious institutions would be forced to perform same-sex marriages.
- In the UCLA Law Review, there are two notable articles on LGBT issues: Nan Hunter has written “Reflections on Sexual Liberty and Equality: “Through Seneca Falls and Selma and Stonewall”“, and Douglas NeJaime has written “Framing (In)Equality for Same-Sex Couples”.
- In Pennsylvania, lawmakers have introduced two anti-discrimination bills aimed at protecting LGBT Pennsylvanians, this week. Think Progress notes that more than 70% of Pennsylvanians support these protections.
- The Advocate profiles some people who have been fired from their jobs for being LGBT, and explains the need for Congress to pass the Employment Non-Discrimination Act (ENDA).
- Buzzfeed spoke with Senator Rob Portman (R-OH) about his views on LGBT issues like DOMA and ENDA, now that he has announced support for marriage equality. In response to a question about the criticism he received after announcing support for marriage equality only when his son came out, Portman said that he hadn’t thought much about marriage equality for same-sex couples before his son came out, but, he suggested, perhaps he should have.
- The Illinois GOP Chairman who recently announced his support for marriage equality has resigned from his position.