Filed under: Briefs
By Jacob Combs
Here’s to attorney Charles Cooper’s final Supreme Court brief on behalf of the official ballot proponents of Proposition 8 in defense of the law’s constitutionality. I sincerely hope it’s the last piece of his writing I ever have to read.
To be fair, Cooper is a very, very good lawyer. He has a way with words both in writing and during oral argument, as he demonstrated in December 2011 during the impassioned and histrionic conclusion to his appearance before the Ninth Circuit in the Prop 8 case (known at the Supreme Court as Hollingsworth v. Perry):
“If this Court says what they [the plaintiffs challenging Prop 8] urge you to say, this will be a signal and dark day in American jurisprudence.”
(In response to that remark, Judge Reinhardt, who would go on to pen the Ninth Circuit ruling invalidating Prop 8, responded wryly, “Thank you, Mr. Cooper. Well, let’s hope, however it comes out, that it won’t be a dark day.”)
As Cooper’s most recent Supreme Court brief demonstrates, though, the proponents of Prop 8 don’t really have any new arguments to make in defense California’s marriage equality ban. Cooper is left to rely instead on lawyerly twists and evasions in order to make the law look as though it supports the constitutionality of Prop 8. In light of this, Cooper’s plaintiffs–and the legal argument they’re trying to make–may have a tough day in court next Tuesday. (more…)
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 1 here and Part 2 here.
By Jacob Combs
Last week, the Obama administration filed a Supreme Court brief challenging the constitutionality of Prop 8 that included the so-called ‘eight-state solution.” California’s marriage equality ban, the brief argued, violates equal protection because California extends all of the rights and responsibilities of marriage to same-sex couples while withholding only the designation of ‘marriage’ to them.
As the brief pointed out, seven other states—Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island—have a similar legal scheme when it comes to marriage-like protections for same-sex couples. If California’s marriage equality ban is unconstitutional, the brief implicitly argued, then these other seven states’ bans likely are as well.
The end of civil unions?
Even amongst supporters of marriage equality, there is hardly a uniformity of opinion as to whether the eight-state solution would be a bold move forward or a Pyrrhic victory that could set back legal protections to for same-sex couples in other states. Some LGBT advocates worry that a Supreme Court ruling invalidating marriage-like civil union or domestic partnership laws as unconstitutional would dissuade legislators in more conservative states from supporting such laws for fear that they would be challenged in court and eventually lead to full marriage equality.
This fear is understandable, but probably less important than it initially appears. First off, as I’ve written before, civil union and domestic partnership laws could very well be subject to constitutional challenge pending a Supreme Court decision on the constitutionality of the Defense of Marriage Act (DOMA). As it stands right now, married same-sex couples are treated by the federal government the same as same-sex couples in civil unions or domestic partnerships—that is, none of these couples are provided any federal benefits. If DOMA is invalidated, though, civil union and domestic partnership laws would only provide couples with state benefits and not federal benefits, making them ripe for equal protection challenges under state or federal law.
Second, and perhaps more significantly, the pace of the marriage equality movement has accelerated so quickly that every single one of the states with marriage-like laws is currently considering a shift to full marriage equality. Legislative efforts are underway this year in Delaware, New Jersey, Illinois and Rhode Island. Lawsuits are pending in Hawaii, Nevada, New Jersey and Illinois. Oregon will likely consider a ballot initiative next year that would put marriage equality to a popular vote in the 2014 election.
Just as importantly, the attorney generals of Delaware, Illinois and Oregon all signed on to a friend of the court brief in the Prop 8 case arguing that the law “codifies the second-class status–for its own sake–of gays, lesbians, and their families” and writing that “[u]nder any standard of Equal Protection analysis, it cannot survive review.” (The attorney general of California filed her own brief arguing the law violates the Fourteenth Amendment.) Although the brief signed by Delaware, Illinois and Oregon does not explicitly make the claim that these states’ civil unions or domestic partnership laws are unconstitutional, the legal argument the brief makes against California’s laws could easily apply to the other states as well.
In several of the states that offer marriage-like legal protections, the path from civil unions or domestic partnerships to marriage equality has been especially speedy. Civil unions were first offered in Illinois and Rhode Island in 2011; in Hawaii, they were first offered in 2012. If anything, the introduction of these not-quite-marriage laws has only accelerated the push for full marriage equality by pointing out the ways in which anything less than equal marriage rights puts couples at risk of discrimination and prejudice.
To put it simply, it is becoming more and more evident that the marriage equality movement has moved past an inflection point where civil unions and domestic partnerships simply do not cut it anymore. A Supreme Court decision recognizing this would be more likely to help than hinder equality advocates—even in the most conservative states—by demonstrating that the separate but equal legal regimes in states like California and Nevada and Rhode Island distract from the real issue.
Same-sex couples should be treated equally when it comes to adoption, parenting rights and, yes, marriage. Civil unions and domestic partnerships were an important stop-gap measure that helped rectify (but only partially) the invidious discrimination same-sex couples faced. The time for such partial fixes has ended. As a nation, we are ready to debate full equality for same-sex couples—in fact, we have already been doing so for years. Solicitor General Donald Verrilli, Jr.’s Supreme Court brief demonstrates that President Obama understands the nation has reached this point. Through its seemingly narrow legal argument, the administration’s brief lays out a nuanced, strategic framework that could lead to nationwide marriage equality within the next decade.
This piece is part of a three-part series examining the Obama administration’s Supreme Court brief arguing that California’s Proposition 8 violates the U.S. Constitution’s equal protection provisions. You can read Part 1 here and Part 3 here.
By Jacob Combs
In a Supreme Court brief filed last week on behalf of the Obama administration, Solicitor General Donald Verrilli, Jr. argued that Proposition 8 violates the U.S. Constitution’s equal protection provisions. Specifically, Verilli pointed to California’s broad recognition of domestic partnership rights for same-sex couples to make his case that the constitutional amendment banning marriage equality in the Golden State should be invalidated because it treats two equivalent classes of individuals differently.
But Verrilli’s brief also included one important detail that could potentially have important ramifications for the eventual outcome of the case before the high court: California is not the only state in the union that has extended significant legal rights and obligations to same-sex couples.
The ‘eight-state solution’: A possible middle ground for a conservative Supreme Court
Verrilli notes in his brief that “[s]even other states provide, through comprehensive domestic partnership or civil union laws, same-sex couples rights substantially similar to those available to married couples, yet still restrict marriage to opposite-sex couples”: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. And even though it doesn’t explicitly say so, Verrilli’s brief clearly provides a framework for what is becoming known as the “eight-state solution”—a resolution to the Prop 8 case at the Supreme Court that would bring marriage equality to all eight states that currently provide marriage-like benefits to same-sex couples, but would leave marriage bans intact in the many other states where they are already on the books.
When viewed in this light, Verrilli’s seemingly narrow brief begins to open up, providing the Supreme Court an additional path by which it can strike down Prop 8 but keep most other marriage bans alive. Essentially, the reasoning for limiting such a ruling to only those eight states with civil union or domestic partnership protections would be that states whose laws and public policy do not recognize same-sex and opposite-sex couples as equals could rationally choose to provide different designations to those couples’ unions without violating equal protection.
A Supreme Court decision along these lines would likely be a compromise one that would hold that states which provide the rights of marriage to same-sex couples must also provide them the designation of marriage. In such a ruling, the Court could conceivably avoid the larger question of the constitutionality of marriage equality bans in general by focusing specifically on the manifest equal protection violation inherent in states with civil union or domestic partnership laws.
The true game-changer in Verrilli’s brief: Heightened scrutiny
An ‘eight-state solution’ decision could certainly resolve the constitutionality of Prop 8. But the central question of whether marriage equality bans are constitutional in any state would remain, and the Obama administration’s brief includes a ticking time bomb that could lay the groundwork for future legal challenges: heightened scrutiny.
Early on in Verrilli’s brief, the Solicitor General makes the case that laws which classify according to sexual orientation should be considered under heightened scrutiny, a more searching form of judicial review which places the burden of proof on the government as opposed to the individual and can only be cleared if the law is–as the Supreme Court has put it–”substantially related” to an “important governmental objective.”
If the Supreme Court took the administration’s position, brought marriage equality to the eight states with domestic partnership or civil union laws and used heightened scrutiny to make this case, the stage would be set for future litigation challenging marriage bans across the United States. Even if the Court declined to look into this issue in the Prop 8 case, the heightened scrutiny standard would open the door to future litigation in which the states that withhold marriage, parenting and adoption rights from same-sex couples would have to prove, as noted above, how such restrictions further an “important governmental objective.”
In all likelihood, they would be unable to do so, and another marriage equality case—probably out of one of the red states—would make its way to the Supreme Court, which would eventually establish marriage equality nationwide. In the meantime, however, district and circuit courts across the country would have the opportunity to grapple with the constitutionality not just of marriage bans, but of adoption bans, lack of employment protections and other issues related to LGBT rights—all under the banner of heightened scrutiny.
Because of these nuances, the Obama administration’s argument is in fact is not a narrow one, but rather a broad, expansive, dramatic advancement of legal protections for LGBT rights across the nation. The fact that Verrilli and Obama have managed to lay the foundation for such a watershed Supreme Court decision while simultaneously presenting the brief as specifically tailored to the facts of the Prop 8 case shows just how nuanced the president’s view of the marriage equality debate is.
Tomorrow, in Part 3 of this series, I’ll examine the effect that a Supreme Court ruling invalidating civil unions and domestic partnerships as unconstitutional could have on the future of the marriage equality movement in more conservative states.