Ari Ezra Waldman | DOMA | Gay Marriage | News | Proposition 8 | Supreme Court

Marriage, DOMA, and Prop 8 at the Supreme Court: What to Expect

BY ARI EZRA WALDMAN

Supreme_court_buildingMany millions of Americans, tens of thousands of legally married same-sex couples, thousands of lawyers and legal academics, and just about everyone who reads Towleroad await word from the Supreme Court on the Defense of Marriage Act (DOMA) and California's Prop 8.

The High Court is not ready to decide the merits of the challenges to those odious and discriminatory laws; rather, the Court is deciding if it should take the cases. Nearly every Monday, the Court reports the cases for which it has granted a hearing -- called, granting a writ of certiorari or just cert if you're in the know or in a hurry -- or denied review. The justices deny hearings to far more cases than they review, but expect a split decision in this instance: The Court will grant review of the DOMA cases, but likely deny review of the Prop 8 case. 

If I'm correct, that's good news. The DOMA cases offer the Court a rare opportunity for conservative and liberal agreement on unconstitutionality, albeit for different substantive reasons. And, if the Court denies review of the Ninth Circuit's decision holding Prop 8 unconstitutional, then thousands of committed gay Californians can marry the ones they love. The broader implication is that the Court can push us farther down the path toward true membership in the community of man.

What follows is a summary of what to expect in the coming weeks and how to understand the process and the substantive questions. For those interested, many people smarter than I are also talking about these questions and are worth a read. For example, the incomparable SCOTUSBlog had an interesting and accessible symposium on Prop 8 and DOMA. The always brilliant Jon Davidson, Legal Director for Lambda Legal, wrote a great piece for The Huffington Post previewing gay rights at the Supreme Court this term. The American Foundation for Equal Rights (AFER), the organization behind the Prop 8 case, is keeping us up to date with all things marriage and Supreme Court related. As is Prop8TrialTracker.com, which also has a good summary of the Second Circuit hearing in one of the DOMA cases (I will discuss that next week). Check out these other outlines to satisfy your 'Law Porn' needs.

MY EXPECTATIONS, AFTER THE JUMP...

The 2012-2013 term at One First Street is going to be groundbreaking for gay rights, not unlike 2003 (Lawrence v. Texas) and 1996 (Romer v. Evans). As Mr. Davidson reminded us in his excellent piece, there have still only been a handful of gay rights cases per se ever decided by the Supreme Court. Any new one will change the way we look at LGBT law.

The Defense of Marriage Act

DOMA will likely be up first. There are, in fact, four separate DOMA cases that could be combined into one omnibus case for review, or any one of them could be taken, heard, and decided, with the others remanded for review pursuant to that decision.

1. There's Golinski, a San Francisco-based case brought by Lambda Legal in which a Ninth Circuit employee is challenging DOMA because it denies her the opportunity to put her same-sex spouse on her health insurance (the Ninth Circuit is an arm of the federal judiciary. In that case, District Judge Jeffrey White not only declared DOMA unconstitutional, but held also that heightened scrutiny is the appropriate standard of review for any state action that discriminates on the basis of sexual orientation. More on that later.

2. The Gay and Lesbian Advocates and Defenders' (GLAD) Gill v. OPM (and its companion, Massachusetts v. Dep't of Health and Human Services) is the furthest along. In Gill, the First Circuit used "rational basis plus" to determine that DOMA violated right to equal protection and due process due all married couples and the government had no legitimate basis for departing from the norm of equality.  

Windsor_doma_201102233. Windsor v. United States, which was brought by the ACLU and just had its oral argument at the Second Circuit, is the story of Edie Windsor (left), who had to pay hundreds of thousands of dollars in federal taxes after her spouse died even though surviving spouses in opposite sex couples would not have had to pay.

4. And, finally, there is GLAD's Pedersen v. United States, out of Connecticut, which raises the same issues.

All of these cases ask whether the federal government can deny to same-sex couples all the federal benefits that are automatically given to opposite-sex couples. No less important, some of them question the standard of review appropriate for laws that discriminate on the basis of sexual orientation: the lower the standard (say, rational basis), the easier for the law to pass constitutional scrutiny; the higher the standard (say, heightened scrutiny), the more the government has to justify its discrimination. That is, rather than just having to show some rational reason for DOMA (rational basis), the government would have to show a substantial connection between DOMA and an important government objective (heightened scrutiny).

You will recall that one of the many pro-LGBT steps President Obama has taken in the last four years -- in addition to repealing Don't Ask, Don't Tell, passing a hate crime law, writing Medicaid rules to requires all hospitals to treat same-sex partners equally, giving prosecutorial discretion to stop the unjust deportation of gay foreign national spouses of American citizens, and, of course, declaring his support for the freedom to marry, among many others -- was to declare that anti-gay discrimination requires heightened scrutiny and under that standard, DOMA is unconstitutional. As a result, his administration has refused to support this odious law in court, relegating that responsibility to the Republican-dominated House. 

In Golinski, Judge White agreed with the President that antigay discrimination should get heightened scrutiny, but in Gill, the First Circuit declined to go that far, sticking with the more traditional rational basis "plus". That strange term refers to a form of rational basis used for state action that discriminates rather than state action that regulates economic conduct, for example. The Supreme Court, then, faces the prospect of both having to decide the appropriate standard of review and the underlying constitutional issue. Of course, the Court could continue to muddle through -- much like it did in Lawrence -- when it decided a gay rights cases using byzantine and contradictory language leaving many scholars unsure of the operative standard of review. That seems the most likely (if unfortunate) result. 

Many have speculated that the Court is more willing to take the DOMA cases rather than a case about gay marriage per se because the former are less controversial, easier to decide, less political, or more conducive to a lopsided majority. That's all true: DOMA, as it is about the real and tangible benefits associated with marriage and the federal government's obvious and unjustifiable discrimination against otherwise legally-married same-sex couples, never has to tough the fraught moral arguments associated with the freedom to marry.

What's more, DOMA is unconstitutional from the left and from the right. The more liberal members of the Court can easily see that the federal government has no legitimate justification for denying things like Social Security benefits, health insurance, spousal sponsorship visas, and countless other benefits from married couples simply because those couples are made up of two men or two women. The "liberals" like Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will strike down DOMA as a violation of equal protection and due process.

On the conservative side, DOMA is a blatant violation of the right's talisman: states' rights. Marriage law and family law, in general, has always been the exclusive responsibility of the states. Until Congress passed DOMA with lopsided (and terrified) majorities, the federal government had merely accepted the definitions of what constitutes a "marriage" from the states and meted out benefits thereto. As Massachusetts District Judge Joseph Tauro noted in his decision declaring DOMA unconstitutional, DOMA changed the status quo from one of state control of marriage law to one where the federal government imposes its own definition of marriage. That should only sit well with the justices whose hate binds their legal judgment.

I am confident the Court will take at least one of the DOMA cases and I am equally as confident that it will be struck down. Expect to hear about a hearing within the next four weeks (by the end of October), with oral arguments scheduled for an average of 2 months later (either right before or right after the Court's Christmas holiday), and with a decision 3-4 months later (April or May 2013).

California's Proposition 8

ImageWhere the Court has a clear reason to take the DOMA cases, it has no legal or political reason to take AFER's case challenging Prop 8, currently captioned Perry v. Hollingsworth. The Ted Olson/David Boies (right) legal team agree, having filed a brief encouraging the Court to deny cert.

A note on the changing names of the Perry case. You may remember that the case used to be called Perry v. Schwarzenegger and then became Perry v. Brown. Some cases change names during their lives because elections replace the operative defendant: here, the case used to named the governor as defendant. But, now that Governor Brown is fully on our side, he would never appeal the favorable district or appellate court decision. So, Dennis Hollingsworth, the head of ProtectMarriage.com, took his place. You will recall that the Ninth Circuit found that he had standing to step into the shoes of the State.

In any event, the Supreme Court has no legal reason to take this case. Although the district court's decision was quite broad, the Ninth Circuit's affirmance was narrow, focused only on the unique trajectory of marriage rights in California. This restricts Perry's reach to the thousands of gay persons in California (and any other state that similarly grants and then rescinds marriage rights, but that has yet to happen). That does not mean Perry is unimportant; it certainly means a great deal to Californians who want to get married and as an interpretation of Romer v. Evans, though I am on record saying I am dubious about the legitimacy of the Ninth Circuit's take on Romer.

If the Court declines to hear Perry, then, pending a few housekeeping steps, the case is over and the freedom to marry returns to California.

***

Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. Thank you, Ari, for this analysis.

    Posted by: bgk | Sep 28, 2012 11:49:10 AM


  2. I have absolutely no faith in this AWFUL, CORRUPT and BIASED Supreme Court. They have made some truly awful decisions over the last few years and they are getting worse. It's time to scrap the whole system.

    The Supreme Court is not our friend. They will stab us in the back. They are there to further their own, right wing agenda.

    Posted by: Icebloo | Sep 28, 2012 11:51:07 AM


  3. I'm excited and nervous when it comes to prop 8. Will they wait until after the election to make a decision whether to take it or not. WHY? It sounds like a political decision.And idf Mitt wins, will it affect the decision of Scotus?

    Posted by: nn | Sep 28, 2012 11:59:33 AM


  4. Some on the court don't even see gay people as people that should have equal rights.

    Posted by: Jaboy | Sep 28, 2012 12:03:49 PM


  5. I cringe every time I see Ari's name on this site. Ari, we are not going to forget your belittling the crimes of Dharun Ravi or your equating Ravi's conviction with Tyler Clementi's death.

    Also, your analysis of Perry is thoroughly shallow. You don't even identify the arguments made in favor of cert, let alone evaluate them. You are a credit to the third-tier law school that pays you.

    Posted by: Mike | Sep 28, 2012 12:20:26 PM


  6. Mike, what an ass.

    And please don't use the pronoun "we" in offering your singular opinion. You don't speak for all of the readers here.

    Posted by: dms | Sep 28, 2012 12:36:35 PM


  7. One of the questions that has never been raised in regards to DOMA is the lack of definition in that law, or any of the anti-gay hate amendments approved in recent years. The various laws/amendments all limit marriage to "one man and one woman" without any definition of the terms. But any student of biology knows that, for a substantial number of human beings, gender is not that clear.

    So what is a "man" under the law? Is it defined by chromosones? But then women with Complete Androgen Insensitivity Syndrome (CAIS) would be classified as male, because they have XY chromosones, but develop as females because their body does not respond to androgen. How about someone who is XXY?

    Is the definition of gender based on organs? But then how do you handle someone who has organs of both genders (this can happen for many different reasons). And if you cannot determine someone's gender, does that bar them from marriage at all?

    My thinking is, if SCOTUS were to uphold DOMA, our next legal strategy would be to make the law so onerous that the straights will abandon it of their own free will. That means fighting in court to get definitions of gender under the laws and, because any definition will automatically eliminate some people from the pool of those who can be married, challenging every marriage license granted where the couple does not prove they meet the definition. This might result in invasive tests or costly examinations for people to prove they are of their alleged gender.

    Such a move would be drastic, but if we lose at SCOTUS, it may be our only option.

    Posted by: CPT_Doom | Sep 28, 2012 12:36:44 PM


  8. One of the questions that has never been raised in regards to DOMA is the lack of definition in that law, or any of the anti-gay hate amendments approved in recent years. The various laws/amendments all limit marriage to "one man and one woman" without any definition of the terms. But any student of biology knows that, for a substantial number of human beings, gender is not that clear.

    So what is a "man" under the law? Is it defined by chromosones? But then women with Complete Androgen Insensitivity Syndrome (CAIS) would be classified as male, because they have XY chromosones, but develop as females because their body does not respond to androgen. How about someone who is XXY?

    Is the definition of gender based on organs? But then how do you handle someone who has organs of both genders (this can happen for many different reasons). And if you cannot determine someone's gender, does that bar them from marriage at all?

    My thinking is, if SCOTUS were to uphold DOMA, our next legal strategy would be to make the law so onerous that the straights will abandon it of their own free will. That means fighting in court to get definitions of gender under the laws and, because any definition will automatically eliminate some people from the pool of those who can be married, challenging every marriage license granted where the couple does not prove they meet the definition. This might result in invasive tests or costly examinations for people to prove they are of their alleged gender.

    Such a move would be drastic, but if we lose at SCOTUS, it may be our only option.

    Posted by: CPT_Doom | Sep 28, 2012 12:36:45 PM


  9. Thank you for providing this informative review of the issues in front of the court. It makes me feel somewhat optimistic. Progress, though incremental, is still progress.

    Posted by: Joe in CT | Sep 28, 2012 12:38:15 PM


  10. Sadly, I must say the piece seems overly optimistic about Proposition 8. Four Justices are anti-gay and probably fuming that the "will of the people" was overturned by Judge Walker and the Ninth Circuit.

    (Even if this were solely about the will of the people, of course, the argument would be incorrect, because in 2010, Californians changed their minds on marriage equality. They elected a Governor and Attorney General who publicly vowed not to defend Proposition 8 in court.)

    Posted by: Matt | Sep 28, 2012 12:44:41 PM


  11. The Prop 8 case is now Hollingsworth v. Perry, not vice versa.

    Expect news of Monday's activity on Tuesday morning, not on Monday.

    The only problem arises if someone actually looks carefully at the Prop 8 decision in the Ninth Circuit. A horrible work of legal non-reasoning. Can't "take away" rights? That's what constitutions do, giveth and taketh.

    Posted by: Bingo | Sep 28, 2012 12:58:13 PM


  12. I generally agree with the analysis here, but think there might be one potential variation: I think it's conceivable the Court will grant one or more DOMA cases (Gill seems most likely to me) but hold off taking any action on Hollingsworth until the DOMA case(s) are decided, with the thought that the DOMA decision might say something pertinent about the Prop 8 (e.g., the standard of review for sexual orientation discrimination). Then (depending on the DOMA outcome) the Court could either deny Prop 8 outright or GVR and send it back to the 9th for reconsideration in light of the DOMA decision.

    Posted by: Glenn | Sep 28, 2012 1:12:24 PM


  13. I disagree, I believe they will hear the Prop 8 case as it holds a national question. And that is whether the US Constitution guarantees marriage for same-sex couples. The side that has appealed this case to the US Supreme Court is asking for the court to answer that question.

    Posted by: Thomas Alex | Sep 28, 2012 2:00:20 PM


  14. "You are a credit to the third-tier law school that pays you."

    I could not have said it any better than this (thanks, Mike).

    Posted by: Benjamin | Sep 28, 2012 2:02:25 PM


  15. "You are a credit to the third-tier law school that pays you."

    I could not have said it any better than this (thanks, Mike).

    Posted by: Benjamin | Sep 28, 2012 2:02:26 PM


  16. Even if DOMA is struck down, it does not mean we can all be recognized as married, or be able to marry. Pennsylvania for example, will still not recognize marriage equality. There will have to be more lawsuits against the states etc. We are only at the beginning of the road unless the SCOTUS specifically says that marriage equality is the result of striking DOMA.

    Posted by: John Simpson | Sep 28, 2012 2:24:25 PM


  17. "This restricts Perry's reach to the thousands of gay persons in California (and any other state that similarly grants and then rescinds marriage rights, but that has yet to happen)."

    Does Maine not fall into this category as well?

    Posted by: Jeff | Sep 28, 2012 4:07:18 PM


  18. "Does Maine not fall into this category as well?"

    Though a marriage bill was passed in Maine, the difference there is that it didn't go into effect before the referendum, hence no same-sex couples married there. (Depending on the outcomes in Nov, Washington and Maryland will be in a similar situation, but there again no one can get married until after the election.)

    Posted by: Ernie | Sep 28, 2012 4:13:05 PM


  19. Mike : It's just this Ari guy's opinion, meant to open up the topic (more legal topics) for discussion. Not a biggie that many will disagree.

    Posted by: Yupp | Sep 28, 2012 4:25:04 PM


  20. JOHN, I believe if DOMA is struck down, each state would have to recognize a legal marriage from another state, just as all states must do now for all-but-same-gender marriages. Unless I'm wrong, it was DOMA that excused states from the full-faith-and-credit business when it comes to marriages.

    If that's so, than all a pair of lovebird Pennsylvania residents would have to do is travel to New York to tie the knot, and return home to PA.

    _ _ _ _

    What I myself am wondering is if the SCOTUS is limited in cert consideration for the Prop 8 case to the narrowness of the appellate decision, or if they can consider the appellant's claims or indeed the entirety of the case. I know they can if they take the case, but I'm unclear about that wide latitude for purposes of cert.

    Posted by: Zlick | Sep 28, 2012 5:25:48 PM


  21. Bingo,

    It's been said over and over again that the Supreme Court announces the cases in which the will deny cert or relist on the Monday following the conferance. That will be this Monday, October 1st.

    Posted by: Stefan | Sep 28, 2012 5:42:23 PM


  22. The Prop 8 case does not hold national implications, it is specific to California as it has been reviewed in a more narrower light. I am with Ari on this one, I think Prop 8 no, but DOMA cases this session yes. Either way, Scalia is going to have to really pull some magic tricks to find DOMA constitutional as the Federal government has no right to infringe upon State's rights. This is a Federalism issue and not a power granted to the Federal Government according to Article Section 8

    Posted by: GLAW2014 | Sep 28, 2012 6:49:10 PM


  23. Nice summary. I have only one correction: the Prop 8 case would not effect LGBT people in every state, just those that are part of the Ninth Circuit. Judges in the other circuits would be under no obligation to view decisions outside their circuit as binding.

    Posted by: Chris S. | Sep 28, 2012 7:02:58 PM


  24. I hate the professional weasels who feel compelled, and entitled, to tell us whom we may or may not marry. Who gave them this power and authority?

    Posted by: FlexSF | Sep 28, 2012 9:32:32 PM


  25. They just can't overturn DOMA. It would break the heart of that thrice heterosexually married Newt Gingrich who gave his all to support marriage.

    Posted by: Andrew | Sep 29, 2012 1:46:14 AM


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