Ten years ago, the Supreme Court decided Lawrence v. Texas, striking down sodomy criminalization laws. Justice Kennedy's opinion in that case is the most important and sweeping gay rights decision in history; that is, until this June — almost ten years to the day — when the Court will decide Hollingsworth v. Perry (the Prop 8 case) and Windsor v. United States (the DOMA case).
In Lawrence, the most exciting supportive amicus brief filed came from the Cato Institute, which usually supports Republican and conservative policies. Cato's support should not really have been surprising, though, given its libertarian leanings. Hollingsworth has its pro-gay marriage Republicans, more than 100 of whom signed on to their own amicus brief. Then came a sweeping filing from the United States government, the importance of which cannot be overstated. Amicus briefs are sometimes a dime a dozen: lots of individuals and groups file "friend of the court" briefs and, especially if all they do is restate the argument of the main briefs, neither the justices nor their clerks pay much attention to them. But, when the President makes his voice heard, he commands attention. As a co-equal branch of the federal government, the Executive branch's position on any legal issue before the Supreme Court merits consideration as a firm statement of public policy.
President Obama and his legal team ask the Supreme Court for three things: (1) heightened scrutiny for discrimination on the basis of sexual orientation, (2) a declaration that California's Prop 8 is unconstitutional, and, by implication from that argument, (3) an end to several other states' bans on same-sex marriage. It is the third point that is getting lost in some of the coverage of the Administration's amicus brief and what I would primarily like to talk about today. AFTER THE JUMP, I will summarize the brief's argument, distinguishing it from AFER's brief, and discuss its importance.
CONTINUED, AFTER THE JUMP…
The Administration's brief argues two related legal points: That Prop 8, like all other state discrimination on the basis of sexual orientation, deserves heightened scrutiny, and that Prop 8 fails to meet the requirements of the Equal Protection Clause under that standard.
Note two things right off the bat. First, whereas the President's brief argues that Prop 8 violates equal protection, AFER's brief argues that Prop 8 violates the Equal Protection Clause and the Due Process Clause. As will become clear in a moment, this gives the President's brief a significantly narrower reach. Second, the President dismisses the lowest form of scrutiny — rational basis — and argues only under a heightened scrutiny standard. Scrutiny levels are akin to the height of a hurdle that you have to jump over during a race: the higher the hurdle, the harder it is for you to win. By focusing only on heightened scrutiny, the President's brief may be implying that the President is taking no position on whether Prop 8 could survive rational basis. By contrast, if you recall Judge Vaughn Walker's original district court decision striking down Prop 8, he held that Prop 8 failed under any level of scrutiny.
The President's heightened scrutiny argument is familiar; it is, in fact, the same argument it submitted in its Windsor brief, calling for the Court to strike down Section 3 of DOMA. Anti-gay discrimination deserves heightened scrutiny, i.e., the higher hurdle to jump, because (1) gays have been discriminated against throughout history, (2) being gay has no bearing on a person's ability to contribute to society, (3) anti-gay discrimination is based on a defining, deeply personal characteristic that defines gay persons as a group (this is sometimes erroneously referred to as the "immutability requirement"), and (4) despite political progress, gays are still a minority group with limited political power.
All of that is true and the Obama Administration has been arguing this point with great force ever since Stuart Delery (left), the openly gay Principal Deputy Assistant Attorney General, and his team started arguing against DOMA at the intermediate courts of appeal. You might be worried about the fourth requirement — sometimes erroneously referred to as the "political powerlessness" requirement — given that the President is openly on our side. Justices Scalia and Thomas are notorious adherents to the fallacy that a few victories and some progress at the ballot box show that gays are not politically powerless, for example. However, powerlessness is not the shibboleth of this test. As Prop 8, and the multitude of other state bans on the freedom to marry suggest, the gay community cannot hope to realize its constitutional rights with a political strategy alone. That Sean Patrick Maloney just won a seat in Congress or that Tammy Baldwin is our first openly gay senator are red herrings: a gay leader or a gay victory here and there have no effect on the tyranny of the majority.
The Administration's equal protection argument may not be as familiar, though I discussed it on Towleroad more than two years ago. AFER's brief argues that bans on the freedom to marry violate equal protection because, pursuant to Prop 8 and other similar bans, some couples can get married and some cannot and the only reason why some cannot is because the individuals seeking to marry happen to be of the same sex. That argument could apply to any ban on same-sex marriage.
President Obama's argument appears to blend this broad equal protection argument with parts of the Ninth Circuit's decision below. Recall that the Ninth Circuit issued a narrow decision centered on the fact that Prop 8 took away rights previously granted to gay people, much like Colorado did in Romer v. Evans. What Prop 8 did, the Court said, was narrow yet profound: it only took away the word "marriage," but left intact the slew of California laws that allowed gays to adopt, gave them all the state benefits of marriage through domestic partnerships, and so on. Denying gays the social significance of the word "marriage" was particularly irrational because keeping all those other pro-gay California laws made Prop 8 bald discrimination for discrimination's sake.
This is the heart of President Obama's argument.
He argues that Prop 8 fails heightened scrutiny because none of the justifications offered by proponents, either in their briefs or at any time before, are "substantially related to an important government interest" (the high hurdle). For example, Prop 8 cannot be justified as a way of protecting against opposite-sex couples having "unintended pregnancies" out of wedlock because not allowing gays to marry does not encourage heterosexuals to marry. Nor can it be justified as a way of encouraging the "optimal parenting arrangement" because "California law continues to grant same-sex domestic partners the full extent of parental rights accorded to married couples. In that context, the exclusion of of same-sex couples from marriage bears no substantial relation to any interest in promoting responsible procreation and parenting."
In other words, if all Prop 8 did was deny gay couples the word "marriage," but still allowed them to raise kids, establish families, and enjoy the benefits of marriage, Prop 8 is entirely pointless and certainly not substantially related to the goal of encouraging good parenting.
The central implication of this position is that it stakes out a middle ground between AFER's broad argument that all bans on same-sex marriage violate equal protection and due process and the Ninth Circuit's argument that Prop 8 violates the Constitution because it took away rights previously granted. AFER's argument could apply nationwide — anywhere couples are denied the right to marry simply because they are gay, their fundamental right to marry is impinged. The Ninth Circuit's argument only applies to California, which first granted then took away marriage rights.
President Obama takes on eight states — California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island — whose policies can be described as "everything but marriage." These states give gay couples all the trappings of marriage, the right to adopt as couples, and all the protections a gay person could want other than the word "marriage." It is for this reason that bans on marriage make no sense in California and, by implication, in these seven other states. This compromise allows the President to make a forceful argument in favor of the freedom to marry, but still leave some wiggle room for the rest of the states.
There is reason to believe that this makes strategic sense.
First, the President knows that Justice Kennedy is the likely swing vote in this case and Justice Kennedy is a cautious, conservative jurist. He has a history of respecting states' rights above all else and often rejects sweeping policies that reek of overreach. Incremental change, if any change at all, seems to be his mantra, as Professor Kenji Yoshino has argued many times before. The compromise position may be aimed at Justice Kennedy's cautious nature, giving him room to support gay rights without undermining the driving force of his judicial career.
Second, step-by-step progress may aggravate those of us who want to marry, but can't, but slow progress denies our opponents fodder to foment backlash. The President, a highly intelligent political actor, may be keenly aware that despite his electoral victory in November, he has a lot to accomplish and does not want to be in a position where he has to anger large swaths of the country and spend political capital where it need not be spent.
Third, it gives the Supreme Court a way out of a nationwide right to marry other than simply dismissing the case on jurisdictional grounds while still supporting the freedom to marry. Many legal experts are concerned that the Supreme Court may not be ready to find a sweeping right to marry that upends so many state constitutional provisions. Making a pro-gay marriage decision akin to the President's middle ground allows the Court to make a strong statement about freedom while still allowing the popular consensus to keep developing further and further in favor of the freedom to marry. A decision along the lines of the President's argument would nudge the already favorable popular view of same-sex marriage even further, thus giving the debate time to work itself out without a Roe v. Wade-type premature intervention.
Even if the President's middle ground may disappoint some vocal activists, the significance of his brief cannot be overstated. Yesterday marked the first time that a presidential administration has stated that a ban on same-sex marriage violates the Constitution. His brief will be read and taken to heart. Through this brief, President Obama — the first "gay" President — has solidified a legacy of compassion and progressivism that surpasses Lyndon Johnson's and Franklin Roosevelt's and Woodrow Wilson's. His brief in Hollingsworth will be remembered as a watershed, a moment after which the freedom to marry seemed inevitable.
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.