This is the last week of the 2012-2013 term and today is another "Decision Day," where the Court will release some of its still pending opinions after 10am. There are several undecided cases, including a groundbreaking one on the Voting Rights Act, but the LGBT community is waiting — always eagerly, sometimes impatiently — for the Court to rule on the fate of DOMA and Prop 8.
Last week, I took a longer view, arguing that the legal landscape in the post-DOMA and post-Prop 8 world will be more complex. I argued that jurisdictional holdings would give us positive, but unsatisfying results. I then discussed the lingering questions for federal marriage rights for gay couples even after DOMA is erased. And I touched on the implications for those who are in civil unions and registered domestic partnerships.
In anticipation of word from One First Street this week — if not today, then Thursday — keep these 8 things in mind:
CONTINUED, AFTER THE JUMP…
1. Standing and Jurisdiction: Are the cases properly before the Court? Remember, the question in the Prop 8 case is whether the California citizens who wrote Prop 8 (the "proponents") had standing to appeal Judge Walker's original ruling declaring Prop 8 unconstitutional. The questions in the DOMA case are (a) whether Edie Windsor, having won at the Second Circuit, can both win and appeal, and (b) whether House Republicans are properly taking the role of defending DOMA. If the answer to any of those questions is NO, then the cases get tossed and the Court doesn't have to rule on anything substantive. We still win, sort of.
2. Scrutiny: The first substantive question is about the level of scrutiny, which is like asking: OK, before we see if you passed the test, we have to determine the passing grade. It's obviously a lot easier to pass when all you have to do is get a 50/100, and harder when you need a 90. If the Court takes the unlikely step of agreeing with President Obama (and rational legal thought) that discrimination on the basis of sexual orientation demands heightened scrutiny" (say, an 80 on the test), then look for DOMA and Prop 8 to be declared unconstitutional. Notably, denying already married couples federal benefits and preventing them from marrying in the first place are both so irrationally ridiculous, look for a substantive holding — if the Court gets there — that rejects the laws under any standard.
3. Equal Protection: This will be the basis for any substantive holding: that DOMA and Prop 8 fail to treat similar people equally for no good reason. We know this argument well, and even the Prop 8 Proponents' main witness, David Blankenhorn, recanted his views and now agrees that all couples, gay or heterosexual, should be treated equally. One thing to look out for in this part of the decision is the fate of the "slutty heterosexual" argument. This is the argument that we need marriage only for opposite-sex couples because they are the only ones that can have "accidental pregnancies." Gay couples cannot. The logic of that as a rationale for denying gay couples the honor of marriage doesn't pass the laugh test, but it is a notable argument because it turns around the stereotype of the sex-crazed gay man and places that noose around the neck of heterosexuals!
4. Breadth of the Decisions: How far did the Court go? It could get rid of DOMA entirely, or keep us in this strange state of flux where DOMA is ok in some places and unconstitutional in others. In Perry, the Court could restrict its decision to California, or it could reach those seven other states that having "everything but" marriage, or it could hand down a national right to marry. In addition to this narrow way of looking at the decision — what lawyers call the "holding" — take note of the Court's language and its statements, or lack thereof, touching on gay equality and membership in American society. These are the words, coupled with the holdings, that will serve as the bases for future victories. The broader the language — "Our system of government does not countenance discrimination on the basis of status," for example — the stronger precedent it will be in the future.
5. Federalism: Did the Court narrow its holding by focusing solely on the violence done by DOMA to the concept of federalism? DOMA, by creating for the first time a federal definition of marriage, took away power that is traditionally and exclusively left to the States. The Court could find DOMA unconstitutional on this ground, but it would lessen the case's impact on future gay rights litigation.
6. Amici: Did the myriad "friends of the court" briefs have any impact? Sometimes, we see direct citations to amicus briefs and sometimes we see the Court learning from the arguments, data, and perspectives offered by amici. It is worth noting if data provided by the Williams Institute, a gay community research institution at UCLA, made it into the decision, for example. That will go a long way to telling us what the Court ultimately decided.
7. Politics: To what extent did our recent political victories — from the 13 states with the freedom to marry to the wave of public officials and senators that endorsed marriage equality — play a role in the decision? On the one hand, conservatives could use our new-found support as a justification for not getting involved, preferring to allow the political process, which they can say we are winning, to run its course. Remember, during argument, the Chief Justice sarcastically noted that senators were "falling over themselves to" support us. (Of course, that argument misses the point that after a few more blue-ish states, the marriage equality state-by-state whistle stop tour runs into the brick wall of arch conservative states.) On the other hand, fence-sitters could see our political victories as cover for making a pro-equality decision without being too far afield from public opinion.
8. Who: Who were the players that made the majorities? A 5-4 decision with Kennedy siding with the liberals suggests something very different than the reverse or a 6-3 decision that includes the Chief Justice. Was Kennedy influenced by his previous gay rights decisions, even though they were based on different parts of the Constitution? Was the Chief moved by his gay family members and the fact that he is going to be sitting on the Court for decades, long after this issue becomes a non-issue? Note the justices' divide at the beginning and you can learn a lot about what you're about to read.
Of course, i will be doing all of this thinking for you. Whether the decision comes down today or Thursday, keep coming back to Towleroad for summary and analysis.
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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.