Filed under: Prop 8
By Scottie Thomaston
Usually, in a Supreme Court case involving social issues that could be perceived as controversial, Court watchers focus on Justice Kennedy’s questions and comments. There are generally four votes on each side with Justice Kennedy in the middle, so in cases involving gay rights, abortion, or racial issues, his vote is the deciding one. Sometimes it’s obvious what he is thinking (he was pretty straightforward in the oral arguments for the health care cases, and in 1996′s Romer v. Evans) but he’s sometimes too vague.
Interestingly, he seemed undecided on the eventual outcome of the Prop 8 case. There were several issues in the case: Article III standing, the level of scrutiny, and whether the Court should use the Ninth Circuit’s decision as its basis for striking down Prop 8, or the Solicitor General’s 9 state solution, or the Olson/Boies team’s 50 state “fundamental right” decision. In rereading the transcript, Justice Kennedy makes comments seemingly supportive of virtually every position.
His first comment wasn’t a question, but was instead a direct response to questions from Chief Justice Roberts and Justice Kagan about Article III standing. They asked Charles Cooper, the lawyer for the proponents of Prop 8, if “any citizen” can step in to defend the initiative when the state government decides not to. Justice Kennedy argued that it’s not just any citizen because the proponents “number one, must give their official address, they must pay money, and they must all act in unison under California law.”
And again, when Ted Olson, arguing for the plaintiffs, said California can’t designate whoever it wants to defend a ballot initiative, Justice Kennedy again said this is not “whoever it wants”, and then he went further in defending proponents’ Article III standing:
These are five proponents of — of the measure and if we were to accept your argument, it would give the State a one-way ratchet. The State could go in and make a defense, maybe a half-hearted defense of the statute, and — and then when the statute is held invalid, simply — simply leave. On the other hand, if — if the State loses, the State can appeal.
But later in the argument, Justice Kennedy said, “I just wonder if — if the case was properly granted.” That seemed to hint that he might believe the Court should dismiss the petition as improvidently granted (a “DIG”), which would leave the Ninth Circuit’s opinion in place and simply override the Supreme Court’s original decision to take up the petition. Since he had argued so strongly for Article III standing to begin with, it seems odd that his opinion would change halfway through the argument.
He did not ask the Solicitor General any questions.
When Charles Cooper stood back up at the podium for his rebuttal, Justice Kennedy suggested pointedly that he should spend his remaining time addressing “why you think we should take and decide this case.”
So on the question of Article III standing, there doesn’t seem to be enough evidence to determine how he might rule. He seemed strongly in support of standing because ruling that there is no Article III standing would allow the state to essentially nullify an initiative passed by voters if state officials don’t like it; as the argument progressed, he appeared to believe it was a mistake to grant cert in the case.
On the merits, his comments and questions are even more murky.
His first question to Charles Cooper on the merits was about the type of classification (under equal protection) that Prop 8 utilizes. Cooper referred to marriage as a gendered institution, and Justice Kennedy asked if Prop 8 should be treated as “a gender-based classification” and suggested that’s an outcome he has been considering. This would mean, of course, that intermediate scrutiny is required to evaluate the law’s constitutionality, instead of the more lenient rational basis review. Cooper’s insistence that marriage is a gender-based institution would seem to strongly suggest that Prop 8 is indeed a gender based classification, though Cooper denied it when asked directly. And it’s important to note that the initiative is not likely to survive if heightened/intermediate scrutiny is applied.
When Justice Kagan asked Cooper what harms would occur if same-sex marriage is legalized, Cooper wouldn’t answer the question clearly, and Justice Kennedy insisted on an answer to that question.
In comments to Cooper, Justice Kennedy seemed to suggest that both sides are right:
I — I think there’s - there’s substantial — that there’s substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal — what could be a legal injury, and that’s the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don’t you think?
In response to Ted Olson, Justice Kennedy suggested that there is a very broad argument for same-sex marriage that would legalize it in every state, if the Court wants to reach it; then, he criticized the Ninth Circuit’s narrow rationale as “odd”:
DY: That’s really — that’s a broad argument that you — that’s in this case if the Court wants to reach it. The rationale of the Ninth Circuit was much more narrow. It basically said that California, which has been more generous, more open to protecting same-sex couples than almost any State in the Union, just didn’t go far enough and it’s being penalized for not going far enough. That’s a very odd rationale on which to sustain this opinion.
One might think, reading that, that he was more inclined to adopt the broader rationale simply because at least it’s logically consistent.
And then he seemed skeptical of the broad rationale:
The problem — the problem with the case is that you’re really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff. Whatever that was.
Then he distinguished Loving v. Virginia and interracial marriage from this case in response to Ted Olson’s suggestion that prohibitions on interracial marriage existed in 16 states when the Court struck them down:
It was hundreds of years old in the common law countries. This was new to the United States.
So — so that’s not accurate.
And since he had hinted earlier that his goal might be to “sustain this opinion” (in his comments on the “odd” Ninth Circuit rationale) the later attempt to distinguish interracial marriage, and his comments that legalization of same-sex marriage might lead to “a cliff” are rather confusing, at least if someone is trying to guess how Justice Kennedy might rule.
Also disconcerting were his comments on the Ninth Circuit opinion itself. Recall that the Ninth Circuit had attempted to write their opinion specifically to appeal to Justice Kennedy. It quotes him throughout and expressly relies on his own opinion in Romer v. Evans to suggest a narrower route for striking down Prop 8, even using rational basis review. If anything, a fair reading of the transcript suggests he seemed to accept the broader “fundamental right” argument more than the Ninth Circuit rationale that relied on his own work. And it’s not clear that he’s even committed to that formulation.
The bottom line: it doesn’t seem like the oral arguments in this case revealed any news on the possible vote count for affirming the Ninth Circuit’s opinion below. The conservative Justices who spoke seemed to be skeptical of striking down Prop 8, while the moderates seemed to believe it should be unconstitutional. And Kennedy never seemed to reach a decision either way. But since the Ninth Circuit – and to a large extent Judge Walker – relied on Kennedy’s own writings, it may not be a good sign that he seemed dismissive of that rationale for striking down Prop 8.
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 Scottie Thomaston
Today, the Supreme Court is hearing Edith Windsor’s challenge to Section 3 of the Defense of Marriage Act. Jacob is in the courtroom and will have first impressions of the hearings after they conclude – today’s proceedings are an hour and fifty minutes long, and may actually go on for a bit longer, since no other case is scheduled for the day.
But I thought I would address some frequent questions we’ve received on yesterday’s hearing in the Prop 8 case.
If the Court says that Prop 8 proponents lacked Article III standing to appeal the case, would same-sex marriage return to California?
It’s a bit of a complicated mess. If the Court dismisses the petition as improvidently granted because the proponents lacked Article III standing to appeal, that would mean the Supreme Court nor the Ninth Circuit had authority to hear the case. But there is no issue regarding standing at the district court level – everyone in district court was a proper party and there was a “case or controversy” that Judge Walker’s decision resolved.
But there is a question over the scope of Judge Walker’s injunction. Proponents argue that it can only apply to the two couples who actually challenged Prop 8 in this particular case, but the Olson/Boies team say that the clear wording of the injunction means it should apply to all of California. And during oral arguments at the Ninth Circuit Court of Appeals, David Boies suggested that if the injunction were held to only apply to the two couples, there would likely be further litigation in an attempt to ensure uniform application of same-sex marriage across the entire state.
But immediately after the Court denies standing, the Ninth Circuit will issue its mandate.
How much time was spend talking about the jurisdictional issues versus the merits issues in the Prop 8 hearing yesterday?
Chief Justice Roberts deliberately asked all parties to start with the jurisdictional and standing issues rather than starting with the merits. So for all parties to the case, their initial time was spent on the issue of standing. This was true even for the Solicitor General, who appeared as amicus curiae (“friend of the court”) after filing a brief which only addressed the merits of Prop 8, not the issue of Article III standing.
From there, the Justices spent time on standing before Chief Justice Roberts directed them to discuss the merits. From my perspective, reading the transcript (I was unable to get into the arguments) it seemed that there was a fair amount of time spent on each issue, and it seemed that Chief Justice Roberts was very deliberate in directing everyone to speak on certain issues at certain times. I would guess they spent more time on the merits and less on standing, but there didn’t seem to be a significant gap, at least to me.
Could we get an early decision if they rule on standing?
Yes. The Court could dismiss the petition as improvidently granted, and a “DIG”, as it is called, is only a one-line “opinion.” In some cases, petitions are dismissed as improvidently granted for lack of standing in as little as a week, and sometimes it’s longer. So it is possible we could see an early, short decision dismissing the petition. It’s also possible the Justices may feel like they need to write an actual opinion on the Article III issues in this case, as they’ve never definitively ruled that ballot proponents have (or lack) federal Article III standing.
Why was the issue of “putting our civil rights up to a popular vote” not addressed?
The point sort of was, and sort of wasn’t, addressed. No one asked directly whether it’s okay to put rights up for a vote, but this was an equal protection challenge and there was not much focus on due process “fundamental rights”, so from my read of the transcript, discussions on this point tended to focus on Justice Scalia’s questions about “when it became illegal” to ban same-sex marriage, in other words, if it is a right, when did that happen? (As Mr. Olson adeptly pointed out, this is not a typical inquiry in these cases, so it seemed a bit of a straw man argument.)
It was my impression that if the Court had focused more on whether marriage is a fundamental right and less on whether the Ninth Circuit’s rationale was valid or “odd” (as Justice Kennedy said) then some Justices would have discussed why it is that the right is voted on through state ballot initiatives. Obviously, in the briefs in this case, Olson and Boies have pointed out that gays and lesbians have faced ballot initiatives more than any other group in American history.
What is the schedule for today, Wednesday, March 27?
Arguments in United States v. Windsor, the DOMA case, began at 10AM Eastern time. Today’s arguments are one hour and fifty minutes, because the parties were asked to brief and argue whether the Bipartisan Legal Advisory Group (BLAG, defending DOMA for House Republicans) has Article III standing, and whether the Justice Department’s agreement with Edith Windsor that Section 3 of DOMA is unconstitutional means the Court should not have granted their petition because they lack jurisdiction over it. The Court appointed an outside attorney, Victoria C. Jackson, to argue that the Court lacks jurisdiction and BLAG lacks standing. And the Solicitor General and BLAG’s lawyer, Paul Clement, will argue the opposite. Edith Windsor’s lawyer, Roberta Kaplan, did not get time to argue on standing and jurisdiction, but was, of course, given time to argue on the merits.
Jacob will have more when he leaves the Court today.