Filed under: Prop 8
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
Greg Stohr, writing in Bloomberg News, takes a look at the looming decision in Hollingsworth v. Perry, the Prop 8 case. The Justices are widely expected to issue the decision in late June, possibly in the last days of the Term. The piece examines the issue of the Prop 8 proponents’ legal standing to appeal the case, an issue that was briefed and argued in the case and is a threshold issue the Justices will need to decide before reaching the merits. The issue of Article III standing is important in the case because none of the government defendants appealed the district court’s decision striking down the initiative, and that left only the ballot initiative proponents to appeal. The government defendants enforced the law but didn’t defend it in district court, although as Marty Lederman pointed out at SCOTUSBlog, most of the government defendants filed answers to the plaintiffs’ complaint, and no one opposed the proponents’ motion to intervene in district court to defend the amendment’s constitutionality:
The California Attorney General, Jerry Brown (now the Governor), answered the complaint by admitting that Proposition 8 violates the Fourteenth Amendment. The other named defendants, including then-Governor Arnold Schwarzenegger, did not admit the allegations, but also joined Attorney General Brown in refusing to defend the new law. Despite this nondefense, the defendants continued to enforce the law by denying marriage licenses to same-sex couples, including the plaintiffs.
In the meantime, the five proponents of Proposition 8 and ProtectMarriage.com filed a motion to intervene as of right in the Perry proceeding, pursuant to Federal Rule of Civil Procedure 24(a), on the ground that the named defendants would not adequately defend the measure’s constitutionality. No party opposed the motion, and the district court granted the proponents’ motion to intervene, ruling that “as official proponents, they have a significant protect[a]ble interest in defending Prop 8’s constitutionality.” The proponents thereafter controlled the defense of Proposition 8 in the district court.
After the proponents appealed the Ninth Circuit asked the California Supreme Court if ballot initiative proponents either have a particularized interest or can step into the state’s shoes to defend their interests in a passed ballot initiative. The California Supreme Court said that proponents can defend the state’s interest, and the Ninth Circuit held that their decision led to the conclusion that the Prop 8 proponents would have standing to appeal based on the state’s interest in defending Prop 8.
One of the plaintiffs’ lawyers told Stohr that they would be happy if, in the end, the Supreme Court ruled that the proponents lacked standing to appeal the case, because it would allow marriage equality in the state:
“A win on standing would be a victory that would establish marriage equality and wipe out Prop 8,” said Theodore Boutrous, a Los Angeles lawyer with Gibson Dunn & Crutcher. “We would be very happy with that.”
But Stohr talked to others who weren’t so sure that the ruling would be that simple or final:
A standing ruling might mean “a quick death for Prop 8,” said Vikram Amar, a constitutional law professor at the University of California Davis School of Law. “But it’s also quite possible — maybe more likely — that it will take some time before we know which couples, beyond the two couples who sued, would be able to get their licenses.”
Some constitutional law professors, including Marty Lederman of Georgetown University Law Center in Washington, say Walker lacked power to issue a statewide ruling.
“District court judges generally do not have the power to issue injunctions that protect persons other than the parties before them,” Lederman wrote in a post on Scotusblog, which tracks the court.
Amar has written previously that he believes that when ProtectMarriage, the ballot initiative proponents, took on the responsibility of passing the initiative and it did pass, voters didn’t knowingly appoint the group to represent the state (since, typically, the Attorney General and the Governor represent California’s interests in court.) His own view is that since ballot proponents aren’t appointed by voters to represent the state, they lack standing. He has also written (as he did in the series in the link above) that he believes both the Ninth Circuit and Judge Walker’s decisions should be wiped out.
Lederman’s argument is somewhat different: he has argued that Judge Walker didn’t have the authority to issue an injunction that applied to all couples or officials, and should have only enjoined officials from denying the actual Prop 8 plaintiffs a marriage license. He believes that even if the injunction is construed to only apply to the two couples in the case, state officials and lawyers have several options to extend the ruling to the whole state: state officials could choose to view the injunction as uniform and make sure it applies to all same-sex couples in California, or, alternatively, deny a marriage license to a same-sex couple and then refuse to defend or appeal a case when it is challenged, or deny a marriage license to a same-sex couple and when it’s challenged in court, file notices of appeal and make sure the case is adequately defended.
But as Stohr’s piece points out, the scope of Judge Walker’s injunction may not be addressed by the Court in the first place (the parties had disputed that there would be authority for the Court to change the scope of the injunction if it lacks standing to hear the case at all.)
Along with those options, one issue that Stohr doesn’t address is the possibility that the Court may “DIG” the case: dismiss the petition for certiorari as improvidently granted. That would mean the case would revert back to its status before the Court granted the petition, meaning the Ninth Circuit’s narrow ruling would remain in place, but it would only apply to California, since the facts of the case aren’t likely to be repeated elsewhere in the Ninth Circuit. The Court doesn’t DIG cases often, but it does at times. (This term they’ve already dismissed one case as improvidently granted.) There are limitations though, because of the process: it takes four votes to hear a case, so in theory, in all cases where only four Justices vote to grant cert, the other five could dismiss the petition as improvidently granted. Because of this, the Court usually won’t DIG a case unless at least one Justice who originally voted to grant cert has changed their mind. There was speculation, based on the oral argument, that it’s possible the four conservatives voted to hear (and would reverse) the case. If that’s true then it doesn’t appear likely any one of those four would change their mind.
Whatever will happen in June, there are several options that would eliminate Prop 8 even in the event of a Court ruling on Article III standing alone. And as others have pointed out, there are several more options for the Court to strike down Prop 8 if it chooses to issue a ruling on the merits. There’s only one decision that would definitively keep Prop 8 in place, and that would be for five Justices to uphold it. It’s objectively difficult to come up with five votes on the current Court for a decision upholding Prop 8. And this month, the three states that have passed marriage laws may have made that even less likely.
Yesterday, the Federal Election Commission (FEC) issued an opinion ruling on an aspect of election law that relies on Section 3 of the federal Defense of Marriage Act to determine whether a married couple can contribute to political campaigns jointly. The FEC generally allows married couples to donate jointly to campaigns, so that the amount doesn’t exceed the cap on individual contributions imposed by federal law. But they were asked to determine if same-sex married couples may legally do the same thing, and their decision says that no, same-sex married couples can’t do this until Section 3 of DOMA is repealed or struck down as unconstitutional by the Supreme Court (a possibility given that they’re reviewing United States v. Windsor now and a decision is expected by late June.
The opinion noted that the FEC doesn’t define “spouse” itself and its standard practice is to rely on state law to determine whether a couple is legally married. However, the point of Section 3 of DOMA was to provide a uniform definition of “marriage” and “spouse” that has the same application for all federal laws. So, as the FEC is obligated to follow DOMA’s restrictive definition of “spouse”, it has to interpret the federal regulation at issue differently. Instead of simply allowing for joint contributions, with DOMA in place, the same-sex couple would be considered to have made “a contribution in the name of another person”, which is illegal.
So, for now, the FEC has to follow DOMA, but the issue will probably be reconsidered after the Supreme Court issues its decision in Windsor:
The FEC’s ruling cited the Defense of Marriage Act’s definition of ‘spouse’ — being only between one man and one woman — as the determining factor that would preclude same-sex couples from recognition under federal regulations. Pointing to the upcoming Supreme Court decision, the FEC intends to revisit the question once the high court rules later this year.
The request from Winslow came as an olive branch to independent-minded Massachusettsians, who may warm up to his campaign following a more open social values platform. Compared to his Republican competitors: Gabriel Gomez, a former Navy SEAL turned politician, is in favor of same-sex marriage whereas Michael Sullivan, a former U.S. attorney, recently shifted his stance on the issue.
Former FEC officials had filed an amicus brief in the Windsor case pointing out how Section 3 of DOMA affects, and sometimes infringes on, free speech. The brief addressed this issue, along with others that affect campaign financing and federal election practices. Citizens for Responsibility and Ethics in Washington (CREW) filed its own amicus brief in the case: CREW is a Congressional ethics watchdog group, and its brief pointed out the myriad ways in which DOMA’s restrictive definition of marriage interferes with enforcing ethics laws and regulations.
The FEC makes a point to say that the issue will be addressed again after Windsor, and a footnote in the opinion also suggests that the Supreme Court’s resolution of Hollingsworth v. Perry, the Prop 8 case, could affect the FEC’s approach to enforcing federal election regulations in the context of same-sex marriage. The decision in Perry is also expected in June.