Filed under: Marriage equality
By Scottie Thomaston
- France’s constitutional court has approved the marriage equality bill today. After it was passed by the assembly, the opposition party challenged the bill, before the bill is signed into law. Now that the court has approved the bill it is expected to be signed quickly.
- A former Obama administration official, who is gay, is calling for an executive order preventing anti-LGBT discrimination by federal contractors.
- The Puerto Rican senate yesterday approved a broad anti-LGBT discrimination bill.
- It’s the ninth anniversary of marriage equality in the United States.
- Portugal’s parliament passed a law that lets gay couples adopt.
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.
A Nevada Assembly committee voted yesterday to advance a constitutional amendment that would allow same-sex couples to marry in the state, setting it up for a full vote in the chamber sometime this session.
Yesterday’s vote in the Assembly Legislative Operations and Elections Committee came down along party lines, with all seven of the committee’s Democrats voting in favor of Senate Joint Resolution 13 and all three Republicans voting against it.
The Nevada Senate approved SJR13 by a 12-9 vote in late April, and the Assembly vote–which is expected to succeed–will be the final legislative consideration of the bill this session. As we noted when the legislature first took up the bill, the amendment has a long path ahead of it before Nevada couples will be allowed to marry:
“The amended bill will have to be approved by both houses of the Nevada legislature during the current session and again during the 2015 session, and then placed on the 2016 ballot as a constitutional amendment. If Nevada voters approve the amendment, the marriage equality ban currently in the state’s constitution would be removed and replaced with language inclusive of same-sex couples.”
One Republican Senator voted in favor of SJR13 when the upper chamber considered the bill. Democrats hold a strong 26-15 majority in the Assembly.
The proposed constitutional amendment, which is being spearheaded by the ACLU and the Progressive Leadership Alliance of Nevada, is not the only push to bring marriage equality to the Silver State: Lambda Legal, an LGBT legal advocacy group, is currently pursuing a federal lawsuit, Sevcik v. Sandoval, challenging the state’s refusal to offer marriage licenses to same-sex couples.
The suit contends that Nevada’s laws, which provide same-sex couples with domestic partnerships but not full marriage rights, violate the equal protection provisions of the U.S. Constitution’s Fourteenth Amendment. In its complaint, Lambda Legal wrote that Nevada’s laws subject the suit’s plaintiffs “to the inferior and novel status of registered domestic partnerships, and has disrespected the marriages some of them have entered in other jurisdictions, because they are lesbians and gay men in same-sex relationships.”
A federal district court judge upheld Nevada’s marriage equality ban last November; that decision has been appealed to the Ninth Circuit. The case is currently on hold until the Supreme Court issues a ruling in the Proposition 8 case out of California, which also falls under the Ninth Circuit. The Sevcik case has also been appealed–unsuccessfully, so far–directly to the Supreme Court by the Coalition for the Protection of Marriage, which is defending Nevada’s marriage equality ban.