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The Supreme Court Decides

June 26, 2013

As every sentient American now knows, the Supreme Court today issued what were probably the most anticipated decisions of the entire 2012 – 2013 term. Each decision was a big step ahead for the cause of same-sex marriage.

In United States v. Windsor, a 5 – 4 majority decided that the federal government may not refuse to recognize same-sex marriages that are lawfully performed in the states. Therefore, the court struck down section 3 of DOMA, the federal Defense of Marriage Act. As expected, the majority opinion was written by Justice Kennedy, joined by the court’s four liberals, Justices Breyer, Ginsburg, Kagan and Sotomayor.

The majority opinion is classic Kennedy. It is concerned with fairness, and relies in part on principles of equal protection. It is concerned with federalism, and relies in part on restraints on federal power to intrude into areas traditionally handled by the states. And it does not draw clear analytical distinctions between those two doctrines.

The net result is very much like the Second Circuit Court of Appeals’ decision in the case. The decision in the Court of Appeals was that a law that implicates both equal protection and federalism concerns requires closer scrutiny than other laws. Justice Kennedy said that such laws require “careful consideration,” a standard of review that seems pretty clearly to be stricter than “mere rationality” review that most laws get. “Mere rationality” requires only some conceivable set of facts that would make the law rational; almost any law can survive that test. On the other hand, “careful consideration” is not as exacting as “strict scrutiny,” the standard of review that applies, for example, to laws that make racial classifications – those laws are always, or at least almost always, invalid.

The four conservative justices contended – via three separate opinions –  that the case was not properly before the court on jurisdictional grounds, and if it was, DOMA should be upheld. But there was a very interesting point of disagreement among the dissenters.

At the end of the majority opinion, Justice Kennedy tossed out what is more or less a mandatory disclaimer that the court was deciding only the case before it and no other. It is quite common for the court to make this disclaimer, yet it is also quite common when the next case comes along to say that the outcome in that case is dictated by this case.

Chief Justice Roberts, in his dissent, said that the majority’s disclaimer is “a logical and necessary consequence of the argument the majority has chosen to adopt.” Therefore, the Chief Justice said, although the court’s decision that the federal government must recognize state-sanctioned same-sex marriages, the court’s decision implies nothing about whether states are constitutionally required to sanction same-sex marriages.

By contrast, Justice Scalia, joined in dissent by Justice Thomas, called the majority’s disclaimer a “bald, unreasoned disclaimer.” It is “beyond mistaking,” Justice Scalia foretells, that the majority intends to invoke today’s DOMA decision in some future case to require states to permit same-sex marriages.

Personally, I hope Justice Scalia is right on this one.

The Supreme Court also decided Hollingsworth v. Perry today, by another 5 – 4 vote. This case was the challenge to California’s Proposition 8, the voter initiative by which Californians in 2008 amended their state constitution to prohibit same-sex marriages. The trial court had struck Proposition 8 down, and the state had declined to appeal. Instead, a group of Proposition 8 backers was allowed to intervene and appeal. They lost in the Ninth Circuit Court of Appeals, and appealed once again to the Supreme Court.

This case generated only two opinions, neither of which got into the question whether Proposition 8 is constitutional. Instead, the two opinions dealt only with the question whether the Proposition 8 backers had legal “standing” to appeal from the District Court’s decision.

The five-justice majority said the backers had no standing; the four-justice dissent said they did. What’s interesting is which justices were on which side. The majority opinion was written by Chief Justice Roberts, and was joined by three of the liberals: Justices Breyer, Ginsburg and Kagan. Justice Scalia was the fifth vote.

The dissent was written by Justice Kennedy. During the oral argument, Justice Kennedy appeared to want to dismiss the case. Obviously he changed his mind. Kennedy was joined by conservative Justices Alito and Thomas, and by liberal Justice Sotomayor.

What to make of these two sets of strange bedfellows? Here’s my take.

Justice Scalia appeared during oral argument to want to decide the case on the merits, not on jurisdictional grounds. There was speculation at the time that he recognized that, with a liberal president and shifting popular opinion, he will not likely get a better vehicle for a decision upholding the limitation of marriage to opposite-sex couples.

My guess is that as the justices deliberated on the Hollingsworth and Windsor cases, Justice Scalia became concerned that there might be five votes to strike down Proposition 8 – which would mean that all states would be required to authorize and recognize same-sex marriages. So when Justice Kagan joined the conservatives on the jurisdictional issue, Justice Scalia had to switch sides on that issue to keep the court from reaching the merits.

*          *          *

There are some complications to be sorted out in the Hollingsworth case. The Supreme Court today directed the Court of Appeals to dismiss the appeal, which has the effect of reinstating the trial court’s decision. The trial court’s decision is not technically binding on the whole state of California – technically, it is binding only for the same-sex couples who brought the lawsuit.

Given developments in politics and public opinion in California in the five years since Proposition 8 was passed, I don’t think there is any doubt that Proposition 8 is done; it’s a question of how and when. There are several ways we might get there. First, on remand, the plaintiffs might seek to convert their case to a class action. In a class action, the trial court would be entitled to issue an injunction that applies to the entire state of California.

Second, Governor Jerry Brown might simply announce that he will no longer enforce Proposition 8, and commence issuance of marriage licenses to same-sex couples. Someone will sue, but I don’t  see that going anywhere.

Third, a same-sex couple might apply for a marriage license and be denied, then sue, starting the whole thing all over again.

And finally, the voters of California, who are now shown by polling to strongly favor marriage equality, might decide a planned 2014 referendum the opposite way they decided Proposition 8.

One way or another, California’s same-sex couples are soon going to be able to get married.

*          *          *

Meanwhile, same-sex couples who live in states where they were married according to state law will be entitled to all of the rights and obligations that the federal government affords to legally married opposite-sex couples: spousal rights in areas like Social Security benefits and inheritance taxes. And yes, same-sex couples now have to pay the federal income tax “marriage penalty.”

Here too there are some things to be worked out. It turns out that some federal agencies define legal marriage according to the law of the state in which the couple resides, but other federal agencies define legal marriage according to the law of the state in which the couple was married. So, for instance, if two 15-year-olds are married in a state that permits such, then move to a state that does not, some federal agencies will recognize the marriage and others will not. Similarly with a same-sex couple from Utah who flew to New York to get married and then went home again.

Still, all of this is at the margins. The core of today’s events is that the largest state in the nation will be added to the 12 states that already allow same-sex marriage, and the federal government is going to recognize most if not all of the same-sex marriages performed in those states.

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