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Supreme Court to Hear Two Marriage Equality Cases

December 8, 2012

The U.S. Supreme Court decided yesterday to consider two same-sex marriage cases: Hollingsworth v. Perry and United States v. Windsor. The Hollingsworth case involves the constitutionality of Proposition 8, the voter referendum that amended the California constitution to prohibit same-sex marriage. The Windsor case involves the constitutionality of the part of DOMA, the Defense of Marriage Act, that prohibits the federal government from recognizing a same-sex marriage that is valid under state law.

The Supreme Court issued its orders after a case conference yesterday morning. The conference calendar included no less than ten same-sex marriage petitions: eight petitions in DOMA cases, the Hollingsworth Prop 8 case, and Brewer v. Diaz, which is a challenge to Arizona’s mini-DOMA. Of significance, the Court did not reject the eight same-sex marriage cases that it did not agree to hear. In other words, those eight cases are on hold, probably until the Court issues decisions in the two cases it agreed to hear.

Edith Windsor married her long-time partner, Thea Spyer in Ontario, Canada, in 2007. Although New York State did not permit same-sex marriages to be performed until 2011, New York recognized same-sex marriages performed out-of-state. So when Spyer died in 2009, New York State law treated Windsor as an inheriting spouse. The United States government, bound by DOMA, treated Windsor as an unrelated heir to Spyer’s estate. As a result, Windsor was compelled to pay literally hundreds of thousands of dollars in federal estate taxes that a recognized spouse would not have to pay. Windsor paid, and sued for refund, asserting that DOMA violated her constitutional right to equal protection of the law. The federal district court in New York agreed, as did the Second Circuit Court of Appeals.

The Prop 8 case was initiated by two same-sex couples, Kristin Perry and Sandra Stier, and Paul Katami and Jeffrey Zarrill, who sued because California law, as embodied by Prop 8, limits marriage to opposite sex couples. They asserted that Prop 8 violates their constitutional right to equal protection of the law. The federal district court in San Francisco agreed, as did the Ninth Circuit Court of Appeals.

The DOMA issue is narrower than the Prop 8 issue. If the challenge to DOMA is successful, any same-sex marriage that is valid under state law would have to be recognized by the federal government, but states would still be free to permit or not permit same-sex marriages. If the challenge to Prop 8 is successful, then all states would be required to permit same-sex marriages, and, of course, the federal government would have to recognize those marriages.

According to Supreme Court rules, the initial briefs are due within 45 days after yesterday’s orders – by January 22. (The acute observer will note that this is actually 46 days – January 21, 2013 is a federal holiday, Martin Luther King Day, and deadlines that fall on weekends or holidays are automatically extended to the next federal government business day.) Answering briefs are due 30 days later, by February 22. The Court’s rules provide that oral argument in a case is not “ordinarily” scheduled less than two weeks after the answering briefs are due, which means that oral arguments wouldn’t be until at least March 8. But reports that the Court’s argument calendar for March runs from March 18 to 27, and predicts that oral argument is likely to be held in the last few days of the March session. The Court could issue final decisions at any time after oral argument and before recessing for the summer late in June.

It is no surprise that the Court agreed to hear the Prop 8 case and at least one of the DOMA cases. What will generate lots of commentary from Supreme Court-watchers is the Court’s choice of the Windsor case as the one DOMA challenge it will consider out of the eight DOMA cases that were on yesterday’s conference calendar.

The eight DOMA petitions before the Court are an odd batch of cases. First of all, the eight petitions involve only four cases, because three of the cases involve multiple petitions to the Court.

Second, the federal government, which usually defends the constitutionality of federal statutes, concluded some time ago that DOMA was unconstitutional and therefore discontinued its defense. Defense of DOMA was taken up by an entity called the Bipartisan Legal Advisory Group of the U.S. House of Representatives – the “bipartisan” is misleading, since the group carries out the wishes of the Republican House majority. BLAG, as it is rather nicely known, has been arguing for the constitutionality of DOMA in litigation across the country, with strikingly uniform lack of success. Meanwhile, the federal government has remained a party to the DOMA cases – arguing against its constitutionality.

Third, five of the petitions reached the Court by an “expedited” procedure that allows the case to go directly from the district court to the Supreme Court, bypassing the court of appeals. The Windsor case was one of those expedited cases. To make things even more complicated, while the Windsor petition was pending, the Second Circuit Court of Appeals heard and decided the case on appeal, holding DOMA to be unconstitutional.

Of course, all eight petitions raised the essential question: whether DOMA’s ban on federal recognition of same-sex marriages violates the constitutional guarantee of equal protection of the laws.

The Court did something interesting when it decided to hear the Hollingsworth and Windsor cases. Usually, the Court decides the issues that the parties present – here, the constitutionality of DOMA and Prop 8. Often, if the lawyers get carried away and list a lot of side issues, the Court will limit its consideration to the more important issues. But in these two cases, the Court actually added issues – which is not unheard of, but is unusual.

In both cases, the issues relate to the “standing” of the parties in the case. As a matter of judicial procedure, it is appropriate – technically, it is legally mandatory – for a court to raise “standing” issues even if the parties have not. This practice effectuates constitutional limitations on judicial power.

In Hollingsworth, the Court asked the question whether the appellate losers who petitioned the Court have “standing” to defend Prop 8. Because the state of California declined to defend Prop 8, as the feds declined to defend DOMA, the lower courts allowed the Californians who had organized and advocated for Prop 8 to appear in defense. The Supreme Court is asking whether that was correct.

In Windsor, the Court asked both whether BLAG has standing to defend DOMA and whether the federal government, having opted not to defend DOMA, has standing to petition the Court.

By raising “standing” questions, the Court leaves itself a way out of deciding the constitutional questions, sort of. If the Court decides that any of the parties in the two cases lack standing, it would dismiss the petition and the lower court ruling would stand. In Hollingsworth, that would mean that Prop 8 is out; but in the Windsor case it would mean that DOMA is only sort of out.

The thing is, if the Court dismisses the DOMA case, it still has seven more DOMA petitions hanging around its docket, on hold while it decides Windsor. If the Court dismisses the federal government’s petition in Windsor, it will still almost certainly grant one or more of the other DOMA petitions, with the net result being little more than delay.

Although it’s no certainty, I predict that the Court will invalidate the section of DOMA that prohibits federal recognition of state-recognized same-sex marriages. It will likely be a 5 – 4 vote, with Justice Kennedy casting the deciding vote.  Although Kennedy is undeniably conservative, he has shown concern for anti-gay measures that essentially rig the game. It’s one thing to say that gay people must resort to the political process to establish their right to marry; it’s another thing to say that, having successfully invoked those political processes and having won the right to marry, gay people must still face federal obstacles that no other legally married couples must face.

On the other hand, I do not think that the Court will rule that the constitution requires all states to permit same-sex marriages. I have commented that, when important social issues are involved, the Court often gets it wrong before it gets it right. That does not mean that I think the Prop 8 case shouldn’t have been brought. There is so much value in having the national conversation – and the conversation doesn’t end when the Supreme Court decides.  In some respects, the Supreme Court decision begins the conversation – consider the 40-year national conversation about abortion rights that was kicked off by the Roe v. Wade decision.

If the Court is not ready to find a constitutional right to same-sex marriage, it has a couple of ways out. One, of course, is to decide directly that there is no such constitutional right, upholding Prop 8. But another way is to decide the standing question it has posed, which would have the effect of adding California, but only California, to the list of states that allow same-sex marriage.

NOTE: On December 14, the Supreme Court issued a scheduling order in the DOMA case, U.S. v. Windsor. The Court’s briefing schedule varies slightly from the standard scheduling provided by the Court’s rules. The upshot remains the same: oral argument will likely be scheduled late in March. No scheduling order was issued in the Prop 8 case, Hollingsworth v. Perry, meaning that briefing will proceed according to the Court’s rules as I outlined in this post.

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