Ari Ezra Waldman | DOMA | Edie Windsor | Gay Marriage | Law - Gay, LGBT | Proposition 8

Supreme Court Will Hear DOMA and Prop 8 Challenges: An Analysis


The Supreme Court issued orders granting hearings in the Prop 8 case, Hollingsworth v. Perry, and one Defense of Marriage Act (DOMA) case, Windsor v. United States. The stage is set for a monumental 2013 at One First Street, with decades-long ramifications for the gay rights movement.

WindsorCourt watching is humbling, especially when you're (half) wrong. Like almost every commentator, I expected a grant in at least one DOMA case. I thought Windsor was the likeliest choice if the Court took only one: it offers an avenue for addressing scrutiny levels and would not require Justice Kagan to recuse herself. As Towleroad readers know, though, I did not expect the Court to grant the petition in the Prop 8 case, especially because of the narrowness of the Ninth Circuit's decision. 

But, being at the Supreme Court has its advantages. It means you can craft the question presented -- the specific legal question the parties have to answer at oral argument and the Court wants to answer in its decision -- pretty much any way you want. The way the Court specified the questions in both cases speaks volumes to the great potential to make remarkable strides toward equal honor and dignity under the law.

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

I discuss what that means, AFTER THE JUMP...

Hollingsworth v. Perry, challenging California's Proposition 8

The American Foundation for Equal Rights (AFER) is leading the charge against California's ban on same-sex marriage and achieved extraordinary success. That success reached its zenith when Judge Vaughn Walker issued a sweeping decision declaring that by discriminating against gay couples, Prop 8 violated the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. The Ninth Circuit affirmed the decision, but took a step back from that broad holding, finding only that Prop 8 was unconstitutional because it took away already existing rights.

The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act

WindsorThe ACLU brought this challenge on behalf of Edie Windsor, who had to pay an exorbitant tax bill upon the death of her partner where every heterosexual widow would not. If you recall, this is the case where a relatively conservative panel of the Second Circuit held that heightened scrutiny is the appropriate level of scrutiny for DOMA and any state action that discriminates on the basis of sexual orientation.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

We all understand the main question. The second question is a bit arcane. Normally, a winner cannot appeal a lower court ruling. The Obama Administration argued at the Second Circuit that DOMA is unconstitutional, so a decision declaring DOMA unconstitutional agrees with the Government's position. That decision certainly made the ACLU and Edie Windsor winners, but whether it made the Government a winner -- and thus, incapable of appealing it -- is less clear. The Government argues that the Second Circuit's decision was a decision against a duly enacted Act of Congress that the executive was still obligated to enforce, notably against its will. Therefore, the decision was, theoretically, still against the Government.

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.


Without being a fly on the wall in conference, the text of the orders and the decision to grant in certain cases but not others speak volumes about what happened, why it took so long, and what this could all mean down the road.

Each order includes an "opt-out." I mean that metaphorically, of course. The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

What about scrutiny? The Windsor order did not specifically mention the appropriate level of scrutiny, but by taking the Windsor case, the Court may have recognized that the hazy scrutiny standard it has left in place since Lawrence v. Texas is no longer tenable. Windsor was the only DOMA case that forced the Government to stake out a scrutiny position; the Second Circuit was unique in that it had no historical precedent on the appropriate level of scrutiny for anti-gay laws. And, the Windsor decision put the level of scrutiny front and center when the court held that heightened scrutiny was necessary. The Court could always continue to muddle through or decide that DOMA is unconstitutional under any level of scrutiny and leave the law an unclear patchwork of scrutinies that varies from circuit to circuit, but the grant and its wording gives the Court the space to make a scrutiny decision.

Olson-boiesBaker v. Nelson is nowhere to be found. Baker is a 1971 case where the Supreme Court denied a hearing on a gay marriage case from Minnesota "for want of a federal question." That is, back then, the Court said that Minnesota's decision to deny licenses to gay couples was not a matter for the federal constitution. To this day, almost every brief supporting a marriage ban refers to Baker, arguing that it forecloses any Supreme Court review. That argument ignores 40 years of gay rights law, in general, and Romer v. Evans and Lawrence v. Texas, in particular, which changed the relationship between gay persons and federal law. The Court may indeed address, and likely explain away, Baker, but the wording of its grant suggests that it is not at the forefront of the Court's consideration.

Is this a good or bad result? Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

In the coming days, I will parse out more details and discuss some of these and other implications of this development. Please ask questions in the comments section and I will do my best to respond as soon as possible.

Congratulations to the AFER team and its plaintiffs, Kris Perry and Sandy Stier, Jeff Zarrillo and Paul Katami, and to the ACLU LGBT Project team, James Esseks and his attorneys, and Edie Windsor. The sacrifices they are making for all of us should never go unnoticed.


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. It's REALLLLY hard to read long paragraphs of black background and white text.

    Posted by: John | Dec 7, 2012 10:12:36 PM

  2. After the election I was convinced that SCOTUS would take both cases and am happy to say I was right. Now I predict that DOMA will be thrown out unanimously and that there will be marriage equality for the entire nation by at least a 7 / 2 decision - and quite possibly unanimously also.

    Here is the bottom line, the writing is on the wall. No Judge wants to be remembered for making the wrong decision, and Bowers v. Hardwick I think is front and center in their minds. Equality is going to happen very soon one way or another. who wants to be on the wrong side of history and be known for having their decision overturned. Roberts would love to have a major civil rights decision in his courts legacy. Justice Kennedy isn't getting any younger, and this would be the third in his trilogy of gay rights decisions. Obviously, the court would give him the honor of writing the decision.

    I see all of this as quite obvious... the last election and the rapid change in public opinion will give them more than ample cover. Yeah, the right wing loons will whine, but no one would be shocked.

    Posted by: MikeH | Dec 7, 2012 10:58:41 PM

  3. Hi Ari,

    My question is if DOMA is ruled unconstitutional would the tax penalties I pay for adding my partner on my benefits go away? I am in a state without same sex marriage. So I am asking for those of us who are not in the legal marriage situation.
    I understand DOMA is what causes this so I hope it will go away if we win. Thanks!

    Posted by: RFD | Dec 7, 2012 11:13:14 PM

  4. Damn, that didn't work.

    Basically, I need to prepare for th eworst.

    What's the worst case scenario, and what is the plan if the worst case scenario comes to pass?

    Posted by: dms | Dec 7, 2012 11:23:53 PM

  5. If the court decides that the proponents of prop 8 do not have standing that would grant Marriage in California I guess, but would it have any affect on the prior rulings and their being used as precedent in future cases?

    Posted by: g3nutz | Dec 7, 2012 11:29:51 PM

  6. Thanks for the best article I have read today on the court's rulings.

    Posted by: Donna in Austin | Dec 8, 2012 1:26:05 AM

  7. If this question has been asked, sorry for repeating. But will existing California marriages like mine be affected by a SCOTUS smack-down? I mean, I know we're grandfathered NOW, but what if they uphold Prop 8?

    Posted by: Jamie in Las Vegas | Dec 8, 2012 1:53:13 AM

  8. @RFD "...if DOMA is ruled unconstitutional would the tax penalties I pay for adding my partner on my benefits go away?"

    I'm not a lawyer, but I understand enough of this to say that the Feds tax benefits for all "non-married" couples (i.e. Domestic Partners), not only gay couples. But DOMA is forcing them to say gay couples are not married in the eyes of the Feds (even if they are married in the eyes of the state). If DOMA falls then gay couples who are married and living in a state which respects their marriage will definitely no longer be taxed on their spouse's benefits.

    I am curious to hear from the lawyers, but my guess is that gay couples who got legally married somewhere but who are living in states which do not recognize their marriage still will see the end of the Federal taxation of their spousal benefits.

    If a gay couple doesn't get legally married somewhere then the Feds will still tax the partner benefits, the same as they do today to unmarried straight couples.

    Posted by: David C | Dec 8, 2012 4:12:48 AM

  9. I agree with MIKEH:
    "Here is the bottom line, the writing is on the wall. No Judge wants to be remembered for making the wrong decision, and Bowers v. Hardwick I think is front and center in their minds. Equality is going to happen very soon one way or another. who wants to be on the wrong side of history and be known for having their decision overturned. Roberts would love to have a major civil rights decision in his courts legacy. Justice Kennedy isn't getting any younger, and this would be the third in his trilogy of gay rights decisions. Obviously, the court would give him the honor of writing the decision.

    I see all of this as quite obvious... the last election and the rapid change in public opinion will give them more than ample cover. Yeah, the right wing loons will whine, but no one would be shocked."

    Notice how Rick Santorum, Michele Bachmann, Herman Cain, Newt Gingrich, Rick Perry, have all but disappeared from the media. Notice how Mitt Romney did not have any of the aforementioned stumping for him during the run up to the election. That far right wing religious nuttery doesn't sell anymore.

    Posted by: Oliver | Dec 8, 2012 4:27:42 AM

  10. Fun fact: Just weeks before the election in 2008, 2 of No on 8's most important leaders - Geoff Kors and Lori Jean - went on extended vacations. Kors went to Spain and Jean went to Alaska. These vacations lasted 3 or 4 weeks.

    Maybe if these selfish, arrogant, overpaid losers had stuck around and worked on the $43 million campaign, we might have pulled out a win instead of a 52-48 loss. They are a big reason we are all here today in 2012, still trying to undo the damage.

    Posted by: Russell | Dec 8, 2012 4:38:41 AM

  11. Not surprised that the Chicken Littles are out in force saying the Court will uphold Prop 8. These are the same folks who said that the Prop 8 lawsuit was a terrible idea from the start.

    I really believe that the Court is going to decide both cases in favor of marriage equality. The Court never wants to be on the wrong side of history, and times are changing very rapidly. I can't imagine Roberts would want his name associated with a landmark ruling that in 10-20 years will be viewed as negatively as Dred Scott.

    Posted by: shawnthesheep | Dec 8, 2012 5:07:28 AM

  12. Could someone at Towleroad PLEASE do us the courtesy of moderating the comments??

    It is important to hear dissenting voices, but character assassination and defamation have no place here.

    Posted by: Lars | Dec 8, 2012 9:44:54 AM

  13. My Two Cents:

    Posted by: David Ehrenstein | Dec 8, 2012 11:39:16 AM

  14. good analysis, thank you Ari!

    as for the dunces who don't possess the ability to intellectually discern, who came on here today to prove just that - thanks. keep trollin.

    Posted by: LittleKiwi | Dec 8, 2012 11:59:09 AM

  15. The cynic in me is saying that the announcement was late so that the decision will come late, after Gay Pride in NYC and SF and LA.

    They did the same thing with Bowers.

    Posted by: BobN | Dec 8, 2012 3:20:00 PM

  16. @stillmarriedinca: I agree 100% with your opinion about EQCA, and if it's necessary to go back to the ballot box to repeal Prop 8, we need to be on record AGAINST the idea of EQCA representing the community in a campaign. However, this is easier said than done. There is a real vacuum of organized leadership. I remember the campaign against Prop 6 (outlawing gay teachers in CA) which faced much more daunting opposition, but was successfully defeated. EQCA's failure must not be allowed to happen again.

    Posted by: Jerry | Dec 8, 2012 3:29:59 PM

  17. SCOTUS has been widely split on any number of major decisions, even when there is a majority. It is impossible to determine the possible outcomes, much less the outcome of these cases. Personally I think the jurisidictional issues are more important to the court then the underlying questions on gay marriage and rights. I have read many cases where they do not decide the central legal question, but decide the case on the basis of jurisdiction. I think the court is most concerned with the third party standing issue and the standing of Congress to defend a law. These questions are likely to determine the underlying question, but perhaps on on any basis forseen thus far.

    Posted by: Dan Schramm | Dec 8, 2012 9:04:49 PM

  18. The notion that the standing issues are raised to allow SCOTUS an "out" suggests a failure to understand what the court does. The standing issue, esp with respect to BLAG, is a huge separation of powers question. It's exactly the sort of issue SCOTUS is meant to address, and there are earlier decisions (Buckley, Chadha) that suggest each side is correct.

    Posted by: Bingo | Dec 9, 2012 2:13:34 PM

  19. Here's hoping gluttonous Scalia and Thomas gorge themselves on saturated fats this holiday season. (Can Thomas talk while Scalia drinks water?)

    Posted by: Rob | Dec 10, 2012 5:26:40 AM

  20. « 1 2 3

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