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

Gay Rights After SCOTUS: What If There's No 'Standing' or 'Jurisdiction'?

By ARI EZRA WALDMAN

The upcoming Supreme Court decisions on DOMA and Prop 8 will not be the last word on marriage, in particular, or gay rights, in general. As we look forward to those words, however, let's take a look ahead and discuss how the legal landscape may be more complicated after the end of June. "Gay Rights After SCOTUS" is Towleroad's series on LGBT legal issues after Perry and Windsor. In today's column, what are the implications if the Court finds no standing in Perry and no jurisdiction in Windsor.

1223497072For nearly two years, we have been familiarizing ourselves with some of the basic issues of federal litigation, including the byzantine rules of standing and jurisdiction. Standing is the right to bring a case in the first place; jurisdiction refers to whether a given court can hear a given case. They are two sides of the same coin: both standing and other jurisdictional questions do not touch on the substantive question the case asks, but rather help determine whether a party can bring a case and whether a court can hear it. They serve gate-keeping roles, preventing frivilous lawsuits or proceedings that violate the Constitution.

And they may give us somewhat unsatisfying results in the DOMA and Prop 8 cases.

What happens if jurisdictional questions get in the way of the Supreme Court's decision on DOMA and the freedom to marry?

The question in the Perry case is whether the citizens who wrote and pushed for Prop 8, the group ProtectMarriage, had the right to appeal Judge Walker's ruling to the Ninth Circuit. If not, Prop 8 is dead and the freedom to marry returns to California. But it returns only to California and the Ninth Circuit's decision is wiped out.

The question in the Windsor case is whether the case is at the Court's doorstep through the proper process and with the proper parties. If the Court finds it had no jurisdiction to hear the DOMA case, we would be left with the absurd rule that DOMA is unconstitutional in some areas and legal in other areas. That would be an administrative and legal nightmare.

On a broader view, jurisdictional decisions in Windsor and Perry would not be cop outs, but they would provide an unsatisfying stop along the way to full equality, most likely extending our journey and making it more difficult by virtually guaranteeing more trips to the Supreme Court. This might not be a bad thing, especially if the alternative is a anti-equality decision. AFTER THE JUMP, let's discuss the questions that jurisdictional holdings will and will not answer.

CONTINUED, AFTER THE JUMP...

LlinfoAs Lambda Legal's handy infographic explains, there are multiple avenues the Court could take. One path holds that despite all the time and effort we've spent bringing these cases to the Supreme Court, these cases don't belong there. And because the pro-equality side won in the courts below, such decisions would give us a good result. In Prop 8, Judge Walker's decision would stand and the world's fifth largest economy (California) would be the next equality state. In the DOMA case, the Second Circuit decision declaring DOMA unconstitutional would stand and DOMA would be unconstitutional in some jurisdictions. Notably, there are several other DOMA cases -- Golinski in California, Gill in Massachusetts, and Pedersen in Connecticut -- which could take over the process, but that would take us into the Court's next term.

Those results would be unsatisfying even though it allows California's gay couples to marry and further damages the DOMA brand. 

First, it would wipe out the Ninth Circuit's decision in Perry v. Brown. If you recall, that decision held that Prop 8 was unconstitutional not on the broad grounds that gay marriage bans violate equal protection or due process, but because California could not take away marriage rights already granted. That decision has its own problems, but it was, at a minimum, the first federal appellate court that declared a ban on marriage equality unconstitutional. A standing holding by the Supreme Court would hold that the Perry case should not have been before the Ninth Circuit at all, thus erasing that decision and its precedential value.

Second, it would create an absurd situation where DOMA is unconstitutional in the First and Second Circuits -- and possibly soon the Ninth Circuit -- and legal everywhere else. Administration of that result would be exceedingly hard: If you lived and married in New York, you get federal benefits and the IRS, immigration authorities, and others would treat you as married. If you lived down the highway in Maryland, you can get married, but since you're in the Fourth Circuit, where DOMA is still viable, you're strangers in the eyes of the federal government.

But a standing decision in the Prop 8 case is likely the best result we can realistically espect. The Court is unlikely to reach a sweeping decision legalizing marriage equality everywhere. The Court is also not likely to adopt the President's so-called 8 State Solution, which would invalidate marriage bans in those 8 states that have civil union laws that are identical to marriage, but without the name. We've discussed the logical problem with that argument before. Plus, I am not confident that this otherwise conservative Court will be able to cobble together 5 votes for anything other than the most narrow decision on an issue that is so toxic to some of them.

And thats ok. If a case is not properly before a court, that court has to dismiss it. Otherwise, we'd be inundated with frivolous and ridiculous lawsuits. It means that our quest for a national right to marry will continue going from state to state and would require another case to reach the Supreme Court (if we choose to go that route again), but it may not be such a bad thing to continue to drive our momentum forward in the states and give the federal courts some time to catch up.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York 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. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. WHAT THE BIBLE SAYS ABOUT HOMOSEXUALITY


    Timothy 1:10
The law is for people who are sexually immoral, or who practice homosexuality, or are slave traders, liars, promise breakers, or who do anything else that contradicts the wholesome teaching
1 Timothy 1:9-11 (in Context) 1 Timothy 1 (Whole Chapter)


    1 Corinthians 6:9 Don’t you know that unrighteous people will have no share in the Kingdom of God? Don’t delude yourselves — people who engage in sex before marriage, who worship idols, who engage in sex after marriage with someone other than their spouse, who engage in active or passive homosexuality,
1 Corinthians 6:8-10 (in Context) 1 Corinthians 6 (Whole Chapter) Other Translations

    Leviticus 18:22 “Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin.
Leviticus 18:21-23 (in Context) Leviticus 18 (Whole Chapter) Other Translations

    Leviticus 20:13 “If a man practices homosexuality, having sex with another man as with a woman, both men have committed a detestable act. They must both be put to death, for they are guilty of a capital offense.
Leviticus 20:12-14 (in Context) Leviticus 20 (Whole Chapter) Other Translations

    Revelation 22:15 Outside are the homosexuals, those involved with the occult and with drugs, the sexually immoral, murderers, idol-worshippers, and everyone who loves and practices falsehood.
Revelation 22:14-16 (in Context) Revelation 22 (Whole Chapter) Other Translations

    Deuteronomy 23:18 “No woman of Isra’el is to engage in ritual prostitution, and no man of Isra’el is to engage in ritual homosexual prostitution.
Deuteronomy 23:17-19 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations

    Deuteronomy 23:19 Nothing earned through heterosexual or homosexual prostitution is to be brought into the house of Adonai your God in fulfillment of any vow, for both of these are abhorrent to Adonai your God.
Deuteronomy 23:18-20 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations


    Posted by: ANONTDH | Jun 20, 2013 1:17:58 PM


  2. @Gerry. I would love for Kennedy to write the decisions. I believe that Lawrence was beautifully written and completely correct. But Roberts has the prerogative of writing them if he wants to exercise the authority, and I think he will want to, because none of the other conservatives share Kennedy's libertarian views. From Roberts we will get a straight forward equal protection analysis - not grand proclamations of individual autonomy (that bolster abortion rights). We shall see.

    Posted by: RVJ | Jun 20, 2013 1:18:11 PM


  3. WHAT THE BIBLE SAYS ABOUT HOMOSEXUALITY


    Timothy 1:10
The law is for people who are sexually immoral, or who practice homosexuality, or are slave traders, liars, promise breakers, or who do anything else that contradicts the wholesome teaching
1 Timothy 1:9-11 (in Context) 1 Timothy 1 (Whole Chapter)


    1 Corinthians 6:9 Don’t you know that unrighteous people will have no share in the Kingdom of God? Don’t delude yourselves — people who engage in sex before marriage, who worship idols, who engage in sex after marriage with someone other than their spouse, who engage in active or passive homosexuality,
1 Corinthians 6:8-10 (in Context) 1 Corinthians 6 (Whole Chapter) Other Translations

    Leviticus 18:22 “Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin.
Leviticus 18:21-23 (in Context) Leviticus 18 (Whole Chapter) Other Translations

    Leviticus 20:13 “If a man practices homosexuality, having sex with another man as with a woman, both men have committed a detestable act. They must both be put to death, for they are guilty of a capital offense.
Leviticus 20:12-14 (in Context) Leviticus 20 (Whole Chapter) Other Translations

    Revelation 22:15 Outside are the homosexuals, those involved with the occult and with drugs, the sexually immoral, murderers, idol-worshippers, and everyone who loves and practices falsehood.
Revelation 22:14-16 (in Context) Revelation 22 (Whole Chapter) Other Translations

    Deuteronomy 23:18 “No woman of Isra’el is to engage in ritual prostitution, and no man of Isra’el is to engage in ritual homosexual prostitution.
Deuteronomy 23:17-19 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations

    Deuteronomy 23:19 Nothing earned through heterosexual or homosexual prostitution is to be brought into the house of Adonai your God in fulfillment of any vow, for both of these are abhorrent to Adonai your God.
Deuteronomy 23:18-20 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations


    Posted by: ANONTDH | Jun 20, 2013 1:18:56 PM


  4. WHAT THE BIBLE SAYS ABOUT HOMOSEXUALITY


    Timothy 1:10
The law is for people who are sexually immoral, or who practice homosexuality, or are slave traders, liars, promise breakers, or who do anything else that contradicts the wholesome teaching
1 Timothy 1:9-11 (in Context) 1 Timothy 1 (Whole Chapter)


    1 Corinthians 6:9 Don’t you know that unrighteous people will have no share in the Kingdom of God? Don’t delude yourselves — people who engage in sex before marriage, who worship idols, who engage in sex after marriage with someone other than their spouse, who engage in active or passive homosexuality,
1 Corinthians 6:8-10 (in Context) 1 Corinthians 6 (Whole Chapter) Other Translations

    Leviticus 18:22 “Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin.
Leviticus 18:21-23 (in Context) Leviticus 18 (Whole Chapter) Other Translations

    Leviticus 20:13 “If a man practices homosexuality, having sex with another man as with a woman, both men have committed a detestable act. They must both be put to death, for they are guilty of a capital offense.
Leviticus 20:12-14 (in Context) Leviticus 20 (Whole Chapter) Other Translations

    Revelation 22:15 Outside are the homosexuals, those involved with the occult and with drugs, the sexually immoral, murderers, idol-worshippers, and everyone who loves and practices falsehood.
Revelation 22:14-16 (in Context) Revelation 22 (Whole Chapter) Other Translations

    Deuteronomy 23:18 “No woman of Isra’el is to engage in ritual prostitution, and no man of Isra’el is to engage in ritual homosexual prostitution.
Deuteronomy 23:17-19 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations

    Deuteronomy 23:19 Nothing earned through heterosexual or homosexual prostitution is to be brought into the house of Adonai your God in fulfillment of any vow, for both of these are abhorrent to Adonai your God.
Deuteronomy 23:18-20 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations


    Posted by: ANONTDH | Jun 20, 2013 1:18:57 PM


  5. Whatever happens, we mustn't forget or forgive that the Obama Administration inexplicably and reprehensibly refused the pleas of Boies and Olson to support their position that ANY ban on marriage equality in ANY state is unconstitutional. What the Administration said instead shocked and confused Justices both from the Left and Right. Quote, emphasis mine:

    JUSTICE GINSBURG TO OBAMA SOLICITOR GENERAL VERRILLI: “So a State that has made considerable progress [such as California] has to go all the way, but at least the Government's position is, if it has...done absolutely nothing at all, then...IT CAN DO AS IT WILL.”

    CHIEF JUSTICE ROBERTS TO VERRILLI: “You’re saying it's got to happen right now in California, but YOU DON'T EVEN HAVE A POSITION ABOUT WHETHER IT'S REQUIRED IN THE REST OF THE COUNTRY.”

    OBAMA SOLICITOR GENERAL VERRILLI: “WE ARE NOT TAKING THE POSITION THAT [MARRIAGE EQUALITY] IS REQUIRED THROUGHOUT THE COUNTRY. We think that THAT OUGHT TO BE LEFT OPEN FOR A FUTURE ADJUDICATION IN OTHER STATES that don't have the situation California has.”

    Posted by: Michael Bedwell | Jun 20, 2013 1:19:45 PM


  6. With France and England in the bag, how much longer can the US drag its feet on ending this discrimination against lgbts? or is the court going to wait until Saudi Arabia decides ssm is the right thing to do before stepping in?

    Posted by: candide001 | Jun 20, 2013 1:19:59 PM


  7. With France and England in the bag, how much longer can the US drag its feet on ending this discrimination against lgbts? or is the court going to wait until Saudi Arabia decides ssm is the right thing to do before stepping in?

    Posted by: candide001 | Jun 20, 2013 1:20:00 PM


  8. WHAT THE BIBLE SAYS ABOUT HOMOSEXUALITY


    Timothy 1:10
The law is for people who are sexually immoral, or who practice homosexuality, or are slave traders, liars, promise breakers, or who do anything else that contradicts the wholesome teaching
1 Timothy 1:9-11 (in Context) 1 Timothy 1 (Whole Chapter)


    1 Corinthians 6:9 Don’t you know that unrighteous people will have no share in the Kingdom of God? Don’t delude yourselves — people who engage in sex before marriage, who worship idols, who engage in sex after marriage with someone other than their spouse, who engage in active or passive homosexuality,
1 Corinthians 6:8-10 (in Context) 1 Corinthians 6 (Whole Chapter) Other Translations

    Leviticus 18:22 “Do not practice homosexuality, having sex with another man as with a woman. It is a detestable sin.
Leviticus 18:21-23 (in Context) Leviticus 18 (Whole Chapter) Other Translations

    Leviticus 20:13 “If a man practices homosexuality, having sex with another man as with a woman, both men have committed a detestable act. They must both be put to death, for they are guilty of a capital offense.
Leviticus 20:12-14 (in Context) Leviticus 20 (Whole Chapter) Other Translations

    Revelation 22:15 Outside are the homosexuals, those involved with the occult and with drugs, the sexually immoral, murderers, idol-worshippers, and everyone who loves and practices falsehood.
Revelation 22:14-16 (in Context) Revelation 22 (Whole Chapter) Other Translations

    Deuteronomy 23:18 “No woman of Isra’el is to engage in ritual prostitution, and no man of Isra’el is to engage in ritual homosexual prostitution.
Deuteronomy 23:17-19 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations

    Deuteronomy 23:19 Nothing earned through heterosexual or homosexual prostitution is to be brought into the house of Adonai your God in fulfillment of any vow, for both of these are abhorrent to Adonai your God.
Deuteronomy 23:18-20 (in Context) Deuteronomy 23 (Whole Chapter) Other Translations

    Posted by: ANONTDH | Jun 20, 2013 1:20:20 PM


  9. @ Gerry, my heart wants you to be right, but my gut is sending me a different message.

    Posted by: Howard | Jun 20, 2013 1:20:39 PM


  10. Well whats this Gay Deal? I still call them Homo's short for Homosexual or my new name is Gender guesser. Tough. now you can delete this

    Posted by: Bob Jenkins | Jun 20, 2013 1:38:52 PM


  11. There's one catch that Ari didn't discuss. Judge Walker was (he is now retired) a district judge in the United States District Court for the Northern District of California. For historical reasons, California is in two districts.

    If Judge Walker's ruling applies only in his jurisdiction (e.g., if the appeal is thrown out because of standing), we could end up with a situation in which Proposition Eight is unconstitutional in Northern California but not Southern California. That's of course a rather bizarre outcome that people would generally find unacceptable, so the question is how this would be resolved.

    With that outcome, I'd imagine NOM or a NOM clone, or maybe a conservative and homophobic local official, would file a lawsuit to have same-sex marriages forbidden in the area covered by the U.S. District Court for the Southern District of California, claiming that Proposition Eight still applies there.

    Posted by: Bill | Jun 20, 2013 1:46:25 PM


  12. I think what's missing from this discussion is what the bible says about homosexuality.

    Could any of the commenters please provide some insight?

    Thanks in advance.

    Posted by: Bob | Jun 20, 2013 2:06:27 PM


  13. @anontdh 1) This isn't a theocracy. It's a secular democracy. your religious garbage is irrelevant. 2) The word 'homosexuality' is a very new word. Therefore it couldn't be in the bible. F#ck off.

    Posted by: Chris | Jun 20, 2013 2:12:36 PM


  14. Nice to see we have a religious nutjob trolling gay blogs... hummmmmmmmm....

    Posted by: Gerry | Jun 20, 2013 2:18:12 PM


  15. God damn it!

    Posted by: Fenrox | Jun 20, 2013 2:20:40 PM


  16. Cleanup needed on aisle nutz!

    Posted by: TomTallis | Jun 20, 2013 2:56:35 PM


  17. I don't give a f*ck about gay marriage because I plan on remaining a single gayboy. Just don't take away my right to be NUDE in my own backyard!!!

    Posted by: Addison | Jun 20, 2013 2:57:30 PM


  18. ANONTDH --> I do not believe in your religion. I do not believe in your god. I do not believe in the hollow words from your 2000+ year old book. Take your hate filled retoric masked behind the false pretense of rightousness and go do something helpful for your fellow mankind. That's what your religion says. From your own book: John 8:7 "Let He who is without Sin cast the First Stone."

    Posted by: Tiny_Spoons | Jun 20, 2013 2:57:59 PM


  19. As I understand it the division of California into two districts is administrative only because it is such a large state both in population and geographically. Decisions reached in one district always apply to the other.

    Posted by: TomTallis | Jun 20, 2013 3:02:52 PM


  20. I say let'r rip. Here in less than one hundred years the ultimate judge "GOD ALMIGHTY" will sort it out.

    Posted by: Lonnie | Jun 20, 2013 3:18:00 PM


  21. The constitutional issue should include the separation of Church and State. Marriage is a religious union in the eyes of God, no matter what God you believe in. All religions throughout the world believe that homosexuality is an abomination. Therefore the courts must conclude that it is a right of religious beliefs and must maintain the soverance of the religious order. Therefore they cannot rule and must maintain the religious laws and independence by the constitution.

    Posted by: Tim | Jun 20, 2013 3:21:33 PM


  22. WHAT IF? Good lord, we will know in a few days exactly how the court will rule. All this speculation is nothing more than mental masterbation. Can we just wait until the actual ruling and THEN figure out what it means?

    Good grief -- this is just ridiculous, getting all worked up over a possible outcome that may not actually happen. Once the ruling comes out, then we can all look at it and discuss and figure out our next steps.

    Posted by: Randy | Jun 20, 2013 3:38:57 PM


  23. Will the Supreme Court be legalizing marriages between mankind and animals, because DOMA will no longer require the marriage of one man and one woman? Would this action also legalize a man or woman having as many wives as they wish at one time? America is just seeing the beginning of our nation's destruction and fall, because our government put homosexual wants above America's laws. Why should America change to satisfy a group of people that have shown they have sick and reprobate minds? America's government won't change their actions to help our nation, but they will to hurt America more. If the Supreme Court justifies same sex marriages in every state, we will see a greater amount of sexually transmitted diseases spread through America, but without a cure. These same sex marriages want the same sex marriages want the same benefits as a marriage between a man and woman. If this is given unto them, these same benefits will have to be given unto other marriages that was ruled illegal before. What will be like giving marriage benefits unto people that marry their pets or people that marry several women at once? For without DOMA, these actions are legal. Defense Of Marriage Act states that only the marriage between one man and one woman is to be recognized. How could the Supreme Court force any decision on states that have passed their decision making same sex marriage illegal in their state and placing it their constitution? The Supreme Court is not going to change DOMA for one group of people, because if they change DOMA any type marriage is to recognized in America by them. Is this legal and what America wants?

    Posted by: Boyd | Jun 20, 2013 5:45:47 PM


  24. Does anybody on here actually know anything about the law or precedent lol? Look, SCOTUS is going to uphold Prop 8 on states' rights grounds. As Kennedy said from the bench, the states have historically determined for themselves what marriage is, and California has voted on this twice now. Marriages and divorces do not happen in federal courts, they happen in state courts. If anything, judge Walker was the one who did not have standing to even entertain that shame trial he conducted at the trial court level. Oh, and his ruling only applies to the couples who sued, not the whole state, and definitely not the entire district or country. Keep dreaming people.

    Posted by: Jaydog | Jun 20, 2013 5:48:29 PM


  25. Hey how did all that repeated bible stuff stay up? I guess some people don't get that the founding fathers, a bunch of Enlightenment types, did not intend for the US to be run based on the traditions of illiterate people on the other side of the world thousands of years ago. You know, before science and Aristotelian logic etc.

    Anyway, RVJ, I hope you are right. But I don't think there's any way Thomas will not vote with Scalia, and I think there's no way no matter what the legal arguements are that Scalia will vote Ari's way. Their thinking is both in St. Thomas Acquinas land, and in not considering anything that has happened in culture since the 1700's.

    Posted by: emjayay | Jun 20, 2013 6:17:07 PM


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