Ari Ezra Waldman | DOMA | Edie Windsor | Gay Marriage | Karen Golinski | Law - Gay, LGBT | Proposition 8 | Supreme Court

What Is Happening at the Supreme Court Tomorrow?


Supreme_Court_US_2010This term at the Supreme Court will decide what gay rights law will look like for a decade. But, before we get to the substance, we have to deal with some procedure: On Friday, November 30, the justices will meet to decide which of the several cases they will take in order to answer basic questions about the Equal Protection Clause, due process, levels of scrutiny, and the future of marriage. 

As many of you know, the Defense of Marriage Act (DOMA) is up for review after both the First and Second Circuits -- not to mention a California district court and several other courts -- declared it unconstitutional. There is also California's Proposition 8, that state's constitutional ban on the freedom to marry, which the Ninth Circuit declared unconstitutional in a groundbreaking, but narrow decision. Also, Arizona is trying to take away domestic partner benefits while leaving state benefits to married couples in place. Though a lower federal court stopped Governor Jan Brewer from implementing her latest antigay rule, the Supreme Court is being asked to step in and decide the matter.

These cases are different: The DOMA cases challenge the federal definition of marriage and the benefits associated thereof. And, there are several DOMA cases -- Gill, Massachusetts, Windsor, Pedersen, and Golinski; some of these cases put the level of scrutiny of antigay discrimination front and center, while others would not require the Supreme Court to decide the issue. Nor do these cases say anything about the constitutionality of state bans on marriage recognition. That is what the Prop 8 case is about, but it is itself unique, referring to the specific situation in which California granted marriage rights only to take them away months later. The Arizona case concerns a state that not only bans its gays from marrying, but wants to further burden them by denying them -- but not opposite-sex married couples -- the state benefits of marriage.

Collectively, the Court's decisions in these cases will change the legal landscape for gay persons and gay couples. They will decide if we are equal or relegated to second class status. They will change how we think about and argue gay rights cases in the future. They will change what it means to be gay in America. And, in all likelihood, it will change for the better.

AFTER THE JUMP, I discuss what will happen to tomorrow, offer what I think are the most likely outcomes, and suggest what the next steps going forward will be.

Tomorrow's conference is a private meeting in which the nine justices get together and decide which cases to hear. They do not really argue about the substance of the case. To the extent that legal issues have to be discussed, they are raised to determine if the Court can or should hear the case. So, tomorrow's discussion is not about what the Court thinks about DOMA's or Prop 8's constitutionality; rather, it is about whether the justices should think about DOMA's and Prop 8's constitutionality (after briefing and oral argument). 

To get a hearing, you need a minority of 4 justices, though you more often get more. Judges who disagree vehemently about the end result, can still agree to want to hear the case. But, getting a hearing at the Supreme Court is rare. Four votes is hard to come by and according to the Chief Justice's year-end report for 2010, the Court received 8,159 petitions for writ of certiorari (formal request for review) for the 2009-2010 Term. Of these, only 87, or 1.005%, were accepted on appeal.

In some form, DOMA will get a hearing. It has to. Two federal appellate courts have already struck down an Act of Congress. The Supreme Court cannot let DOMA be the law in one part of the country and have it not be the law from Maine to Pennsylvania. But, there are a few options for what the grant will look like. (For now, let's exclude the option that the Court takes none of the cases.).

First, the DOMA cases.

1. The Court combines all the DOMA cases into one. The Supreme Court does this when two or several cases come to it at the same time and ask the same issues. The Court's recent decision declaring President Obama's Affordable Care Act constitutional did just that. 

This has a theoretical efficiency benefit, but is not clear to me that it is a real efficiency benefit. If the Court takes all of the DOMA cases and puts them into one, it is likely that Justice Kagan would have to recuse herself because she was President Obama's Solicitor General when some of those cases were going through the pipeline. Despite the intense politics surrounding recusals, the generally collegial Court does not want that to happen if it can avoid it. Plus, combining them does not add any efficiency: the Court can take one and simply hold the others in abeyance until there is a result. It would take the same amount of time. Finally, these cases raises slightly different issues. Most notably, the Second Circuit case (Windsor) is more likely to nudge the Court to say something about levels of scrutiny than the First Circuit case (Gill/Massachusetts). 

So, the Court has another option:

2. Take one DOMA case and hold all others pending the result. This is a likely scenario because it would avoid Justice Kagan's recusal. It also could be a strategically important decision: If the Court takes the First Circuit's Gill or Massachusetts, it will deal with a "rational basis with bite" or "rational basis plus" level of scrutiny and have no occasion to say anything about heightened scrutiny. This would be a safe choice if some of the justices don't want to fracture a majority over the issue. 

But, then again, the Second Circuit's case (Windsor) would not necessarily require the Court to make a definitive statement about the level of scrutiny even if the Obama Administration and the ACLU are united on that front. The Windsor Court said heightened scrutiny was applicable regardless of the complicated mess other courts had been using. (Thanks to Lambda Legal's Jon Davidson for catching a mistake in an earlier version.). But, while this circuit split on scrutiny certainly encourages the Court to make a clear statement of law for the lower courts to use, we know that the Court -- even pro-heightened scrutiny liberal justices -- could elect to muddle along if they could not be sure of the votes.

In other words, any DOMA case should allow the Court the opportunity to, at a minimum, clarify what it thinks the level of scrutiny should be for antigay discrimination. Therefore, the choice of which may hinge on Justice Kagan's recusal policy and which case is the most appropriate venue for a strategic compromise.

Next, allow me to complicate the picture by adding the American Foundation for Equal Rights and its Prop 8 case, now titled, Hollingsworth v. Perry. Combining this case with the two options above, we have these three alternatives:

1. Take either all or one of the DOMA cases and take the Prop 8 case. This would be indicative of an ambitious Court that feels it -- and the public -- are ready to make a decision on marriage. There could be a lot of strategy that goes into this: if a conservative justice feels that his best chance to uphold Prop 8 is to take it now, he might want to do, or he might want to take it and lose now just to encourage a public backlash, assuming the public isn't ready for marriage freedom. A more liberal justices might want a clean, favorable DOMA ruling without a complicating factor. Plus, not taking the Prop 8 case lets the Ninth Circuit's decision stand, which would bring marriage back to California; taking the case would delay marriage.

I don't see this as a likely option for legal reasons. The Court has no substantive reason to take the Prop 8 case: it is specific to one state and could not affect any other pending state marriage law given the unique chronology of marriage in California. Therefore, I can't imagine any of the more moderate justices seeing the Prop 8 case as a good venue for a national decision in favor of the freedom to marry.

2. Take one DOMA case and hold pending the other DOMA cases the Prop 8 case. Or, much less likely, take all the DOMA cases and hold pending the Prop 8 case. This option implies that the Court thinks that its substantive holding on DOMA will affect the underlying decision on Hollingsworth. I have spoken before about how any decision in one gay rights case affects the substantive outcome and interpretation of the next gay rights case, so if the Court does this, it might signal its real willingness to tackle the level of scrutiny question and have it applied to the Prop 8 case and the other DOMA cases in a systematized way.

It's a clever option, but I just don't see it happening. There would be no need to hold pending the Prop 8 case in order to deal with the level of scrutiny in Hollingsworth because Judge Walker's district court decision declaring Prop 8 unconstitutional offers the Court a heightened scrutiny model already. The Court would not need to send Prop 8 back down in order to make the level of scrutiny a part of the case for adequate review. Plus, as I noted above, there is still no substantive reason to even think Hollingsworth merits review at any stage as long as the Ninth Circuit's decision about taking away rights is the analytical framework.

3. Take either all or one of the DOMA cases and deny the Prop 8 case. This is the most likely outcome. As a matter of law, the DOMA cases have to be reviewed and both liberals and conservatives can unite to declare it unconstitutional. Moderate and liberal justices are also likely to think that the country is not quite ready for a substantive decision on a marriage ban, even if it does only focus on California. 

The Court following option 3 is probably the best possible outcome for gay rights. The DOMA cases have the potential to be groundbreaking on substantive issues like the dignity of gay couples, equal protection, and levels of scrutiny. Even if the Court continues its muddling standard of something-sorta-like-but-maybe-a-bit-more-than-rational-basis, we will still be having scrutiny arguments, but the Court would still strike down DOMA's odious discrimination. That is itself a victory. And, the final opinion may offer future gay rights attorneys the necessary language for the next win, whether in marriage, employment discrimination, immigration, or surrogacy and adoption.

A notable result of the a favorable decision will be its expressive effect. Once we have a positive decision about the dignity of gay couples, we can include in our political mobilization efforts the lofty rhetoric from a body no less august and honored than the Supreme Court. Homages to marriage, the greatness of gay parents, and the final debunking of quack science will be good for law and politics, especially as we take the next steps to win the freedom to marry in 2013 and 2014 in places like Rhode Island, Delaware, Oregon, and Illinois.

The conference happens tomorrow and though we could know as early as tomorrow afternoon (sometimes, the Court notifies us of its grants immediately), it is more likely that the Court releases its grants on Monday, starting at 9:30 AM. After that, the briefing clock begins. The normal procedure -- 45 days for the party seeking reversal of the lower court decision, 30 days for the respondent to respond, and 30 days for the response to the response -- may be altered, but it will generally look something like that. This puts briefing done by the middle of March. A hearing will be scheduled for shortly thereafter. And, we should expect a decision by the very end of the term. 

But, don't forget, if the Court denies a hearing on the Prop 8 case, marriages in California can begin almost immediately. 


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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  1. @ ANTHONY :
    The answer I think is "yes" if you're in a straight marriage; "No" if you're in a same sex marriage.

    But does the UK afford more respect to
    USA marriages than the USA does to UK marriages ? terms of recognition.... That is the conundrum .

    That's what DOMA means to those of us "foreigners" with US partners.

    The USA has a Federal Law not recognising the validity of Foreign same sex marriages.....even though the UK recognizes a same sex marriage from Massachusetts.

    This is the absolutely outrageous arrogance of US lawmakers.

    Posted by: JackFknTwist | Nov 29, 2012 5:44:20 PM

  2. Ari,
    For many of us the issue is not getting married in the USA, it is the recognition of a foreign marriage validly entered into in a foreign country.
    We want exactly the same rights as straights.
    We don't want to have to get married in the USA if we are already married validly abroad.
    Why should we ?
    straights don't have to marry twice !!!!

    Posted by: JackFknTwist | Nov 29, 2012 5:54:38 PM

  3. Ari,
    Your answer to anthony ppresupposes that the couple in question is not already validly married abroad , right ?
    That's the only reason they would have to marry in the USA to bring their spouse, right ?

    Posted by: JackFknTwist | Nov 29, 2012 5:57:49 PM

  4. People like Antonin Scalia - living several hundred years ago as they do - scare the bejeebus out of me. Until folk of his age die off, there is a legitimate threat. That being said, the complexion of the court may have changed just enough, recently. It's no slam dunk, though.

    Posted by: Geoff | Nov 29, 2012 6:48:17 PM

  5. I hear about how SCOTUS won't take Prop 8 because of it's narrow ruling, as if that is binding. The only binding ruling is from SCOTUS, and they could very easily take the previous ruling and completely gut it, because quite honestly, that decision is just ripe for the picking.

    It's all so hard to say what will happen. Optimally, if the court had any sense amongst it's members, then we'd be looking at a 7-2 decision for DOMA, and either leave Prop 8 alone, or take it and with another 7-2 decision, both favorable. It is incredibly difficult to say. With how things have gone, maybe it would be ok to leave marriage to the states for a while, then let SCOTUS come in and take care of the rest in a couple years, after many states have allowed gay marriage. Or perhaps this is our only chance for a SCOTUS case for gay marriage.

    Posted by: Matt | Nov 29, 2012 7:36:55 PM

  6. The question is not whether marriage should be left to the states. Marriage is left to the states. The question is whether there is a 'rational basis' for Congress to have decided that federal statutes (tax, benefits, etc) do not have to recognize a relationship as a 'marriage' for federal law purposes even if a state says it's a 'marriage' for state law purposes.

    The 'rational basis' test for equal protection violations requires the Court to ask if there is ANY CONCEIVABLE VALID GROUND for the feds to say 'No, we won't recognize this as a marriage'? Although the courts that ruled against DOMA have said there is NO CONCEIVABLY VALID GROUND, please don't assume that 5 members of the Supreme Court will reach the same conclusion. I notice that not a single person who posted anything here is addressing Justice Sandra Day O'Connor's opinion in Lawrence v Texas where she said that "preserving the TRADITIONAL institution of marriage" is a "legitimate state interest" . That doesn't automatically mean that DOMA is constitutional, but it's a statement that Roberts and/or Kennedy would have to ignore or 'explain away' in the context of DOMA.

    Many of the posts that are made here present very good arguments for finding DOMA unconstitutional. But none of us can predict whether 5 members of the Supreme Court will say that the federal government's refusal to recognize state-authorized same sex marriages has NO CONCEIVABLE VALID REASON behind it. We are all guessing, even if that is educated guessing.

    Posted by: MiddleoftheRoader | Nov 29, 2012 8:07:23 PM

  7. What about the Arizona case? Do you think SCOTUS will step in or allow the lower court ruling to stand?

    Posted by: Cemil | Nov 30, 2012 3:53:02 AM

  8. The moniker: Don't trust everything you read on the Internet comes to mind...

    To clarify, it is NOT correct that the Supreme Court granted and consolidated all of the Obamacare act cases that were pending before it. It took the 3 Eleventh circuit cases and decided those, but held the cases from the 4th and 6th Circuits while it ruled on the 11th Circuit cases.

    Thus, it could be that they would take the Second Circuit cases and hold the 1st Circuit ones, particularly since Justice Kagan will likely recuse herself from the 1st Circuit ones as she worked on that case while in the SG's office.

    I also disagree that 3 is the likely outcome. Although analytically different, the implications of the DOMA cases for the Prop 8 cases are clear and as other commenters pointed out, the briefs themselves concede the issues are intertwined.

    I would think the more likely outcome is to grant one or two cases covering DOMA (could even be one from each circuit as they present different arguments - the 10th amendment issue) and hold the rest of the petitions while those cases are decided.

    But we shall see.

    Posted by: Jorge | Nov 30, 2012 7:48:22 AM

  9. @anthony: unfortunately, it doesnt. the principle is that if you are married to a citizen, that citizen can sponsor his foreign national spouse. you have to be married in the us.

    Posted by: Ari Ezra Waldman | Nov 30, 2012 8:59:27 AM

  10. @jack: i believe anthony said he was civil unioned, not married. if i misunderstood, my apologies.

    Posted by: Ari Ezra Waldman | Nov 30, 2012 9:01:30 AM

  11. @jorge: nothing you said contradicts anything in my article. i didnt say sebelius combined ALL cases, but it was an example of the court combining cases. you havent explained why you think they would hold prop 8 in abeyance. that makes no sense from a legal standpoint, but Im open to new theories that i havent considered.

    Posted by: Ari Ezra Waldman | Nov 30, 2012 9:04:02 AM

  12. I'm a federal retiree and in a same sex marriage.
    I've been in contact with the Office of Personnel Management(OPM), and Federal Employees Health Benefits(FEHB).
    Both have informed me that even if section 3 of DOMA is ruled unconstitutional, legislation must still be passed by congress and signed by the president to provide spousal benefits to couples in same sex marriages.
    I have seen this reported anywhere.

    Posted by: devon charles | Nov 30, 2012 10:10:30 AM

  13. @devoncharles: to the extent that words need to be changed in certain statutes that have gender-specific terms, some implementing process has to happen. in many cases, that can be done through rule-making, though.

    Posted by: Ari Ezra Waldman | Nov 30, 2012 10:26:01 AM

  14. Thanks for the info, Ari.
    I predict that whatever rule-making needs to be done after the Supreme Court decision will be made needlessly more difficult by angry anti-equality republicans.

    Posted by: devon charles | Nov 30, 2012 11:14:36 AM

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