Ari Ezra Waldman | DOMA | Gay Marriage | Law - Gay, LGBT | News | Proposition 8 | Supreme Court

Prop 8 and DOMA at the Supreme Court: Broad or Narrow Rulings?


This is the third in a series of analyses about the Supreme Court's decision to hear cases challenging the constitutionality of the Defense of Marriage Act and Proposition 8. Today's discussion: the Questions Presented.

Supreme_court_buildingThe Supreme Court has the luxury of not only deciding which cases to review but also the manner of the review. That is, when granting a writ of certiorari -- when granting a hearing on a particular case -- the Court specifies questions to be answered by the briefs and at oral argument. The Court usually chooses among the question formulations included in the various certiorari briefs from the two sides of the case. Lawyers call these the Questions Presented and they can make or break a case.

These questions generally include a reference to a particular part of the Constitution: "Whether the Commerce Clause permits Congress ... ." They also almost invariably start with the word "whether," like the set up for a forensic debate competition. And, they try to focus counsel for both parties on the particular legal question that most interests the Court and will decide the conflict between the parties. But, what may seem like a simple, legally arcane sentence can be fraught with politics, weighed down by prejudice, and purposely stacked in favor of one side or the other.

Consider a classic example with which many in our community should be familiar: the constitutionality of anti-sodomy laws. A state law criminalizes sodomy between members of the same sex and two men convicted pursuant to that law want to challenge its constitutionality. Their case makes it all the way to the Supreme Court, which grants a hearing, but has two choices for the question presented:

1. Whether the Due Process Clause of the Fourteenth Amendment includes a fundamental right to same-sex sodomy.

2. Whether the Due Process Clause of the Fourteenth Amendment prohibits a state from criminalizing sexual intimacy between two individuals?.

You see how the question can frame the debate. When Justice Byron White wrote the odious majority opinion in Bowers v. Hardwick, he seemed to answering Question 1, a question so patently offensive in its myopia that there was no way the gay rights movement could win. Even if the Constitution countenanced a right to gay sex, the notion that this was the limit of our quest for liberty was a not-so-subtle attempt to cast the entire gay community as hedonistic, selfish, and sex-driven. However, when Justice Kennedy wrote the majority opinion in Lawrence v. Texas, he seemed to be answering Question 2. 

The question presented can also set the scope of the coming decision. Much of the discussion about the Supreme Court's review of Hollingsworth and Windsor has focused on the breadth of that review: the district court's Prop 8 decision was broad, but the Ninth Circuit's affirmance was narrow; some of the DOMA decisions included a holding on the level of scrutiny, while others skipped that question. The Questions Presented can open the door to answering all or only some of those questions. 

AFTER THE JUMP, let's consider the Questions Presented in the Prop 8 and DOMA cases and see what those formulations mean for our prospects for victory.


628x471In Hollingsworth v. Perry, the Prop 8 case brought by Paul Katami, Jeff Zarrillo, Sandy Stier, and Kris Perry (left), the Court chose the following question:

Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.

The Court also specified a question about its jurisdiction: Whether petitioners have standing under Article II, Section 2 of the Constitution in this case.

The questions as written are meant to give the Court the most expansive set of options. The standing question, as we discussed last week, allows the Court to decline to hear the substance of the case for either political or detached legal reasons. The substantive question is broad -- as opposed to jumping off the Ninth Circuit's decision and only asking if the taking away of marriage rights violated the Fourteenth Amendment -- and thus gives the Court the opportunity to decide the case as broadly or as narrowly as it wants. Notably, though, the Question Presented does not specifically mention the Due Process Clause of the Fourteenth Amendment, which was part of the basis of Judge Vaughn Walker's broad district court decision declaring Prop 8 unconstitutional in the first place. That does not necessarily mean the Due Process Clause could never come into play; the Court has a habit of occasionally coloring outside the lines. But, the question may indicate that the Court is most interested in the equal protection implications and maybe less interested in whether marriage is a fundamental right.

In Windsor v. United States, the Prop 8 case, we see the same broad Questions Presented:

Whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State.

Again the Court specified a jurisdiction/standing question and asked a Harvard Law School Professor, Vicki Jackson, to argue the standing of the House Republicans

Slide4At the outset, you may notice a striking difference between the questions. Both questions refer to the Equal Protection Clause, but the Prop 8 case refers to the Fourteenth Amendment while the DOMA case refers to the Fifth Amendment. That is because Prop 8 is a state law and DOMA is a federal law. By a quirk of language and history, many of the rights included in the first ten amendments to the Constitution -- what we all call the Bill of Rights -- only apply to the federal government. That was their intent when they were written. But, after the Civil War and the ratification of the Fourteenth Amendment, which bound state governments to protect the due process and equal rights of all their citizens, many rights that used to only limit the federal government were incorporated to apply to the States. The Fourteenth Amendment was the legal tool used to get much of the Bill of Rights to apply to the States. Therefore, when a state law is up for constitutional review, the question will refer to the Fourteenth Amendment, which applies federal constitutional rights to the States. When a federal law is up for constitutional review, that extra step isn't necessary and the original amendment applies.

More generally, the Questions Presented indicate that wiggle room is the key. Although the Court generally restricts itself to the oft-quoted mandate to decide a case on as narrow grounds as possible, there is no sense in limiting the options the Court has ex ante, especially in a case that touches on such an important and controversial social and legal matter of public concern. It is entirely possible that the Court, or at least some members of the Court, will want to decide Hollingsworth on the narrow grounds used by the Ninth Circuit. But, while the Question Presented does not require that result, it doesn't foreclose it, either.

It is also possible that some members of the Court will want to make an explicit holding in Windsor regarding the appropriate level of scrutiny for state discrimination on the basis of sexual orientation. The broad question in Windsor allows the justices to do that -- one could argue that we cannot answer the question of constitutionality under the Fifth Amendment without determining the level of scrutiny -- but it does not require them to answer that foundational question. The justices could continue to limp along like they have since Lawrence and continue Justice Kennedy's lack of clarity, or they could simply pass over the question entirely and hold that DOMA is unconstitutional on any level of scrutiny.

The breadth of the Questions Presented may give the Court options, but it also highlights the risks we face in these case. My confidence in the ultimate unconstitutionality of DOMA aside, a broad question allows the Court to make broad, sweeping decisions that could be fantastic boons or penetrating blows to our quest for equal dignity. The Court could decide that heightened scrutiny is appropriate and declare both DOMA and Prop 8 unconstitutional or it could mandate the lowest form of rational basis and let both survive. I don't think the latter will happen, but the Questions Presented certainly allow the Court to take either path. 


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.

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  1. Thanks Ari, great analysis as always. Although, you have underscored my concern over the 'wiggle room' the court has left for itself. My fear is that broad rulings could be bad for us either way: both in the obvious manner (whereby they rule against us) but also via the less obvious route in which a broad ruling in our favor leads to a hostile public backlash followed by decades of trench warfare (eg Roe v Wade). Perhaps because I am a cautious person, I'm hoping for a narrow ruling in our favor on Prop 8.

    Posted by: Lars | Jan 16, 2013 11:23:47 AM

  2. Honestly, how does law manage to move so far away from just doing what is right?

    Of course couples should be treated equally and of course we shouldn't be removing rights by popular vote.

    If these decision are anything less, I am going to be so f'n bullshiz!

    Posted by: Pete N SFO | Jan 16, 2013 11:30:39 AM

  3. Well the way they framed the question in both Prop 8 and DOMA cases seems favorable to me.

    Posted by: Anthony | Jan 16, 2013 11:44:12 AM

  4. There are so may more options.....

    Say in Hollingsworth they decide that the 9th Circuit misapplied Romer and then send the case back to the 9th to consider all the other arguments before it. That buys them at least a year before having to decide the case.

    Posted by: Bingo | Jan 16, 2013 11:53:34 AM

  5. Whoever compares this case to Roe v Wade is an idiot. If they legalize marriage nationwide, people in the South will protest for like 2 days and then forget about it. It won't affect anybody but gay people.

    Posted by: Anthony | Jan 16, 2013 11:53:37 AM

  6. They're going to have to be broad enough as to not have to be constantly hearing these similar cases over and over. They obviously see what's coming down the pipeline.

    Posted by: jawole | Jan 16, 2013 12:00:06 PM

  7. our right to marry should be recognized under the 1st ammendment protecting our free speech and religious practices especially in the case of marriage which is a form of free speech and often has religious overtones. Our LGBT friendly churches and other gay friendly houses of worship deserve the same respect to perform our marriages in the same way the anti gay churches can be exempt from performing our same sex marriage ceremonies.

    Posted by: alexander | Jan 16, 2013 12:00:32 PM

  8. And might I also add that the fact that Ted Olson is arguing this case for us is a HUGE help with Kennedy and Roberts.

    Posted by: Anthony | Jan 16, 2013 12:00:40 PM

  9. @Anthony
    I appreciate your optimism, but as same-sex marriage has never posed any restriction on the right to opposite-sex marriage, I'm not confident that the Right will let this one go. There is a range of possible outcomes:

    The broadest possible victory would be to require all states to register marriages regardless of the gender of the participants. I believe this would fuel an ongoing culture war à la Roe v Wade.

    Short of that, states could be required to grant full faith and credit to marriages performed by other states.

    Short of that, the Federal Government would be ordered to grant full faith and credit to the marriages certified by any of the states, even if the states in which the couple currently reside do not recognize the marriage for state purposes.

    And short of that, the Court can decide that marriage is governed by the Tenth Amendment and that the Federal Government will recognize marriages that are recognized by the state in which the parties reside.

    I contend that the severity and duration of the political backlash will depend on where on this spectrum the decision rests.

    Posted by: Rich | Jan 16, 2013 1:44:11 PM

  10. I still believe it will be compared to Loving v Virginia more than Roe v Wade. Abortion polling has remained consistent over the past few decades, but same sex marriage polling has only been going in one direction : Up. That's where I disagree.

    Posted by: Anthony | Jan 16, 2013 2:01:07 PM

  11. You're all marinating in gay world. You underestimate the impact of this decision on all Americans.

    Posted by: Gary | Jan 16, 2013 2:01:42 PM

  12. how come my straight family members with their straight marriages are supportive of gays marrying? shouldn't they, being related to my gay @ss, be the ones most "negatively affected" by...uh...a "redefinition" of marriage?

    unless these crazies will up and never marry because "gays can do it now" then I don't know what they're afraid of.

    Posted by: LittleKiwi | Jan 16, 2013 2:13:48 PM

  13. Regarding the Prop 8 case, if the court answers the first question and that answer is "no," would that ruling invalidate state laws against marriage equality in every state? With the way the question is phrased, if the ruling applies only to California, it sounds like the court would be saying that California cannot define marriage as being between a man and a woman, but that others states can. And that sounds like a setup for identical future cases that would feature the exact same question, but with a different state included.

    Posted by: Jere | Jan 16, 2013 2:26:30 PM

  14. @ Gary--you wrote: "You underestimate the impact of this decision on all Americans."

    And that impact would be...?

    Posted by: Clayton | Jan 16, 2013 2:29:10 PM

  15. @ Clayton: Generally speaking, Supreme Court rulings regarding fundamental rights, and the granting or the withholding of such rights, inevitably have consequences for people beyond those immediately affected by the ruling. Any ruling which expands rights for one group, in one area of life, inevitably will provide backing and precedent for future challenges to laws that restrict other rights for other groups of citizens. So much of the recent victories we've experienced in the lower courts with respect to Prop 8 and DOMA are based on prior Supreme Court rulings regarding anti-discrimination ordinances (Colorado Amendment 2) and sodomy laws (Lawrence). Those Supreme Court rulings were themselves based on prior rulings having little or nothing to do with matters of sexual orientation such as Brown vs Board of Education (racial equality), Griswald vs Connecticut (contraception) and Roe vs Wade.

    Not infrequently the ultimate consequences (or ultimate up until a given point in time) of a court ruling lie far from the subjects of the given controversy which those rulings addressed. That is the basis of Gary's point and, while I think it could have been framed more diplomatically, that is why the Prop 8 and DOMA cases should be matters of concern to all Americans rather than to gay and lesbian Americans exclusively.

    Posted by: Bob | Jan 16, 2013 2:56:33 PM

  16. I am no legal scholar, but have been extensively reading all the pros and cons regarding the Prop H8 case from my home state of California. I'm guessing that if the Article III of DOMA is overturned, then there will be a difference in California between those of use who were married in the short window of opportunity, and our friends who are now forced to settle for domestic partnerships that have little teeth but supposedly the same legal benefits as marriage within only the state of California. My hope is that when Article III is overturned, the justices will then have a clearer picture that Prop H8 does create two different classes of relationships for LGBT couples, and that that would violate the Equal Protection Clause (some of us would only get state benefits, while others get both state and federal benefits.)

    Ari, if you are reading this, I am curious to know how you think the U.S. Supreme Court views the "portability" issue of marriage for LGBT citizens. If we are legally married in one state, and for example one spouse is on a business trip and is injured in another state that doesn't have marriage equality, are we then suddenly not viewed as married. Basically, in my humble opinion, the idea that we are restricted to career, family, travel, and freedom of opportunity (or the pursuit of happiness, in many cases) to only states that have granted such equality seems legally unworkable. It would open up so many other legal problems. While I agree they won't make a broad ruling unleashing marriage equality to all states, I can see them forcing states to recognize out-of-state marriages in terms of rights and benefits. Otherwise, how do you resolve all those issues that heterosexual couples don't even think about when they travel between states?

    Posted by: Keith | Jan 16, 2013 3:35:56 PM

  17. NIce to be here and see your post !

    Posted by: charmingdate | Jan 17, 2013 2:45:32 AM

  18. Thank you very much for this post and for the series.

    Posted by: Jay | Jan 17, 2013 9:48:42 AM

  19. @keith: thank you for your question. first, you may be confusing a few things. article III refers to the constitution, specifically the section giving powers to the federal judiciary. i think you mean section 3 of coma, the marriage definition. also, section 3 has very little to do with portability. thats section 2. so, regardless of what happens in windsor, if you are married in massachusetts you take your doubly adopted child on a vacation to missouri, where, god forbid, something happens, missouri does not have to recognize that youre married for any legal purpose. missouri doesnt even have to recognize that you are your childs parents. only one of you (the original parent) will be recognized and the other will be shut out of all parenting decisions as far as the state of missouri is concerned. unfortunately, that legal and social problem will not be undone by declaring section 3 of DOMA unconstitutional. its why we need a national marriage right.

    Posted by: Ari Ezra Waldman | Jan 17, 2013 6:14:15 PM

  20. Holding out for 100% Equality as the outcome of their ruling in both Prop H8 and DOMA. Anything less is completely unacceptable. Enough wasted time, effort and millions of dollars - discrimination is discrimination. Religion has gotten away with far too much for far too long, the end of their platform is now. From their pulpits - who cares, in our government their time is over.

    Posted by: RexT | Jan 18, 2013 2:01:01 PM

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