The Supreme Court Hears Arguments on Proposition 8 and DOMA

In Hollingsworth, the Governor and Attorney General of California declined to defend Proposition 8. As a result, private parties that include the proponents of Proposition 8 intervened in the case in the trial court. Now, as petitioners, they seek to overturn the Ninth Circuit's decision that found the ballot measure unconstitutional. In granting certiorari, the Justices of course agreed to hear argument on the question presented by the petition, i.e., 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. But the Court also directed the parties to brief and argue an additional question: “Whether petitioners have standing under Article III, ' 2 of the Constitution in this case.” Hollingsworth, 133 S.
Ct. at 786.

Not unlike the stance taken by California officials regarding Proposition 8, the Obama Administration announced in 2011 that the U.S. Department of Justice would no longer defend the constitutionality of DOMA. John Boehner, Speaker of the U.S. House of Representatives, convened the House's so-called Bipartisan Legal Advisory Group (BLAG) to authorize a defense of the statute, and BLAG intervened in several cases, including Windsor, in which DOMA was challenged. The Supreme Court agreed to hear argument on the question presented by the petition in Windsor: “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.” Petition for a Writ of Certiorari Before Judgment at I, Windsor, No. 12-307, 2012 WL 3991414 (U.S. Sept. 11, 2012). But, as it did in Hollingsworth, the Court in Windsor also added a question of its own: “Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether [BLAG] has Article III standing in the case.” 133 S. Ct. at 787. In addition to the straightforward question of whether BLAG has standing to defend DOMA, the Supreme Court in its question has suggested the possibility that there is no case or controversy before it as required by Article III.

The Court's threshold questions about standing and jurisdiction were front and center in the oral arguments heard by the Justices in March. In the oral arguments on Proposition 8, Chief Justice John Roberts insisted that advocates address the standing question before arguing the merits of the constitutional questions surrounding the ballot initiative that sought to strip away the right of same-sex couples to marry in California. In the DOMA case, the Court scheduled separate time, at the outset of the session, specifically for argument of the non-merits questions.

In Hollingsworth, six Justices questioned whether there was standing in the case. Among them was Justice Anthony Kennedy, regarded by Court watchers as the likely swing vote on same-sex marriage as he has been on so many issues. During the argument, Justice Kennedy voiced his concern that this is “a case where there's a substantial question” on standing and wondered aloud if certiorari had been properly granted by the Court. Hollingsworth, Transcript of Argument, March 26, 2013 (“Prop 8 Tr.”), at 48, available at http://goo.gl/Gt3jc.

On the other hand, conservative Justice Samuel Alito suggested that the Supreme Court of California had properly permitted the petitioners to defend Proposition 8 when that state's officials refused to do so, especially inasmuch as “the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious ' .” Id., Prop 8 Tr. at 33. He went on to express his view that “the State ' can choose some other person, some other group to defend the constitutionality of a State law. And the California Supreme Court has told us that the [petitioners] in this case are precisely those people.” Id.

In the DOMA appeal, Professor Vicki Jackson ' appointed by the Justices to brief the issue of whether the Court has jurisdiction in the case ' began the oral arguments by declaring that “[t]here is no justiciable case before this Court” because the petitioner, the United States, was “not ask[ing] the Court to redress the injuries it asserts” and because BLAG, “which does seek redress in the form of reversal, asserts no judicially cognizable injury.” Windsor, Transcript of Argument, March 27, 2013 (“DOMA Tr.”), at 5, available at http://goo.gl/D0GR6.

Several of the Justices were critical of the Obama administration's decision to stop defending the law in court while still enforcing it. Chief Justice Roberts in particular voiced serious doubts about the Court's ability to adjudicate the merits of the case. He noted repeatedly that it was “totally unprecedented” for the Court to uphold appellate jurisdiction in a case where the parties on both sides ' in this case, the United States as well as the plaintiff, Edith Windsor ' agreed with the ruling of the court below. Id., DOMA
Tr. at 18-20.

The Justices' Questions on The Merits

On the merits of the Proposition 8 case, conservative Justices seemed inclined to side with the petitioners, who suggested that the ballot initiative expressed the will of the people of California to “hit the pause button” until more is learned about the long-term sociological effects of the “experiment” of same-sex marriage in the jurisdictions that have legalized it in the last few years. See Prop 8 Tr. at 19. Picking up on the argument that more needs to be known about the long-term effects of same-sex marriage, Justice Antonin Scalia noted his view that there is considerable disagreement among sociologists about whether it would harm a child to be raised in a same-sex household. Id. at 19-20. In a similar vein, Justice Alito questioned Solicitor General Donald Verrilli's argument in favor of same-sex marriage. Noting that “[t]raditional marriage has been around for thousands of years” while “[s]ame-sex marriage is very new[,]” Justice Alito questioned Verrilli's argument that the Court “ step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet[.]” Id. at 56. “On a question like that, of such fundamental importance,” Justice Alito asked, “why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?” Id.

Justice Kennedy countered the “hit-the-pause-button-until-we-know-more” argument, voicing a poignant concern about the immediate adverse effect of Proposition 8 and its denial to same-sex couples of the right to marry. He noted that “[t]here are some 40,000 children in California [who] live with same-sex parents, and they want their parents to have full recognition and full status[,]” eliciting a concession from Charles Cooper, counsel for the supporters of Proposition 8, that “ [t]he voice of those children is important in this case . '” Id. at 21.

In the Windsor arguments, Justices across the spectrum seemed troubled by DOMA. The Court's more conservative Justices asked questions about whether the DOMA statute creates a “federalism problem,” since it intrudes into the traditional role of the states to regulate marriage. The more liberal Justices seemed amenable to the argument that DOMA discriminates against same-sex couples and was passed with the clear intention of limiting the rights of an unpopular group. At the same time, several of the Justices (including Justice Kennedy) expressed skepticism of the argument, by former Solicitor General Paul Clement in support of the statute, that Congress passed DOMA not to discriminate but for the sake of having a uniform definition of marriage for purposes of federal law. See generally DOMA Tr. at 59-66.

What Will the Justices Do?

The Court will have an array of options in the same-sex marriage cases. In the Proposition 8 case, for instance, it could rule that no state may ban same-sex marriage; conversely, it could uphold Proposition 8, ruling that state bans on same-sex marriage do not violate the U.S. Constitution. Or it could make a narrow ruling that applies only to California. The Court could instead decide that the petitioners do not have legal standing to defend Proposition 8 in the wake of the decision by California state officials not to defend the measure. Similarly, the Court could hold that DOMA is unconstitutional because it impermissibly discriminates against same-sex couples who are permitted to marry under state law, or it could strike down the law on federalism grounds, because the definition of marriage is properly a question to be decided by the states and not by the federal government. But it is also possible that the Court will determine that it cannot adjudicate the case because the petitioners have no standing to defend DOMA or because ' inasmuch as the United States and Edith Windsor both agree with the ruling on appeal ' there is no case or controversy before the Court.”

In offering predictions about what the Court will do, it has escaped the attention of no one following these cases that Justice Kennedy wrote the majority opinion of the Court in both Lawrence v. Texas, 539 U.S. 558 (2003), and Romer v. Evans, 517 U.S. 620 (1996). In both cases, the Court reached pro-gay rights holdings. And both cases figured in the analyses of the Circuit Courts in the appeals now before the Justices. Fueling predictions of an outcome affirming the unconstitutionality of Proposition 8 and DOMA, supporters of marriage equality are looking to language used by Justice Kennedy in his opinions in Lawrence and Romer.

In striking down anti-sodomy laws in Lawrence, Justice Kennedy noted that:

our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ' These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. ' Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

539 U.S. at 574 (citations and internal quotations omitted).

And in Romer, the Court struck down a proposed amendment to Colorado's Constitution (“Amendment 2″) that would have prohibited all legislative, executive or judicial action at any level of state or local government designed to protect gays and lesbians. Writing for the Court, Justice Kennedy noted that, as a result of Amendment 2,

[h]omosexuals ' are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

517 U.S. at 627. Concluding that the amendment violated the Equal Protection clause, Justice Kennedy wrote that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.” Id. at 635.'

It may well be that Justice Kennedy's vote will be decisive again if the Court reaches the merits of the question whether Proposition 8 and DOMA are constitutional. And it may well fall to Justice Kennedy to write one opinion that turns on whether the Ninth Circuit, in declaring Proposition 8 unconstitutional, properly applied the opinion he wrote for the Court in Romer or another opinion that turns on whether the Second Circuit properly applied his decision in Lawrence in striking down DOMA.

Conclusion

The Supreme Court's decisions to review the Proposition 8 and DOMA cases have raised the possibility of a landmark constitutional decision on whether the right to marry may be limited on the basis of sexual orientation. At the same time, the Justices have interjected questions about the standing of petitioners in both cases and even about its jurisdiction in the Second Circuit case. Depending on the answers to those questions, there may be no ruling on the merits at all, much less a sweeping constitutional ruling. Advocates on both sides of the debate have looked for clues in the Justices' questions at oral argument, but the Court has proved itself difficult to predict based on its questioning of counsel. These cases are no different in that respect; anything can happen. The only thing that can be said with any level of certainty is that decisions in both cases are expected to be handed down by the end of the Court's current term, in late June.

Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

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On March 26 and 27, 2013, the U.S. Supreme Court heard oral arguments in cases that give the Court an opportunity to render a definitive ruling on the right of same-sex couples to marry. In Perry v. Brown , 671 F.3d 1052 (9th Cir.), cert. granted sub nom. Hollingsworth v. Perry , 133 S. Ct. 786 (2012), the Court agreed to hear the case in which lower courts struck down Proposition 8, the ballot initiative that' amended California's Constitution to define marriage as the union of a man and a woman. In Windsor v. United States , 699 F.3d 169 (2d Cir.), cert. granted , 133 S. Ct. 786 (2012), the Court agreed to hear one of several cases around the country in which lower courts struck down Section 3 of the federal Defense of Marriage Act (DOMA), which limits the definition of marriage to heterosexual unions for purposes of federal law. See DOMA ' 3 (codified at 1 U.S.C. ' 7).

But while the Court agreed to ' and did ' accept briefs and hear oral arguments in both Hollingsworth and Windsor, there is a possibility that the Justices will not weigh in on the merits of the same-sex marriage issue in either case. In both matters, the Justices asked the parties to brief and argue questions about the standing of the petitioners, and in Windsor, they also asked whether the Court even has jurisdiction under Article III of the Constitution to determine the case. Then, when counsel appeared before the Court in March, the Justices insisted on hearing arguments that addressed the standing issue before they would take argument on the merits. If ' as some believe will happen ' the Justices decide that the petitioners have no standing, or if they determine that the Court has no jurisdiction, there would be no ruling on the merits concerning the constitutionality of Proposition 8 or DOMA when decisions are handed down in June. That, in turn, would let stand the lower court rulings that struck down Proposition 8 and DOMA as unconstitutional.

Questions Posed by the Court May Portend Rulings Not on the Merits

In Hollingsworth, the Governor and Attorney General of California declined to defend Proposition 8. As a result, private parties that include the proponents of Proposition 8 intervened in the case in the trial court. Now, as petitioners, they seek to overturn the Ninth Circuit's decision that found the ballot measure unconstitutional. In granting certiorari, the Justices of course agreed to hear argument on the question presented by the petition, i.e., 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. But the Court also directed the parties to brief and argue an additional question: “Whether petitioners have standing under Article III, ' 2 of the Constitution in this case.” Hollingsworth, 133 S.
Ct. at 786.

Not unlike the stance taken by California officials regarding Proposition 8, the Obama Administration announced in 2011 that the U.S. Department of Justice would no longer defend the constitutionality of DOMA. John Boehner, Speaker of the U.S. House of Representatives, convened the House's so-called Bipartisan Legal Advisory Group (BLAG) to authorize a defense of the statute, and BLAG intervened in several cases, including Windsor, in which DOMA was challenged. The Supreme Court agreed to hear argument on the question presented by the petition in Windsor: “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.” Petition for a Writ of Certiorari Before Judgment at I, Windsor, No. 12-307, 2012 WL 3991414 (U.S. Sept. 11, 2012). But, as it did in Hollingsworth, the Court in Windsor also added a question of its own: “Whether the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether [BLAG] has Article III standing in the case.” 133 S. Ct. at 787. In addition to the straightforward question of whether BLAG has standing to defend DOMA, the Supreme Court in its question has suggested the possibility that there is no case or controversy before it as required by Article III.

The Court's threshold questions about standing and jurisdiction were front and center in the oral arguments heard by the Justices in March. In the oral arguments on Proposition 8, Chief Justice John Roberts insisted that advocates address the standing question before arguing the merits of the constitutional questions surrounding the ballot initiative that sought to strip away the right of same-sex couples to marry in California. In the DOMA case, the Court scheduled separate time, at the outset of the session, specifically for argument of the non-merits questions.

In Hollingsworth, six Justices questioned whether there was standing in the case. Among them was Justice Anthony Kennedy, regarded by Court watchers as the likely swing vote on same-sex marriage as he has been on so many issues. During the argument, Justice Kennedy voiced his concern that this is “a case where there's a substantial question” on standing and wondered aloud if certiorari had been properly granted by the Court. Hollingsworth, Transcript of Argument, March 26, 2013 (“Prop 8 Tr.”), at 48, available at http://goo.gl/Gt3jc.

On the other hand, conservative Justice Samuel Alito suggested that the Supreme Court of California had properly permitted the petitioners to defend Proposition 8 when that state's officials refused to do so, especially inasmuch as “the whole point of the initiative process was to allow the people to circumvent public officials about whom they were suspicious ' .” Id., Prop 8 Tr. at 33. He went on to express his view that “the State ' can choose some other person, some other group to defend the constitutionality of a State law. And the California Supreme Court has told us that the [petitioners] in this case are precisely those people.” Id.

In the DOMA appeal, Professor Vicki Jackson ' appointed by the Justices to brief the issue of whether the Court has jurisdiction in the case ' began the oral arguments by declaring that “[t]here is no justiciable case before this Court” because the petitioner, the United States, was “not ask[ing] the Court to redress the injuries it asserts” and because BLAG, “which does seek redress in the form of reversal, asserts no judicially cognizable injury.” Windsor, Transcript of Argument, March 27, 2013 (“DOMA Tr.”), at 5, available at http://goo.gl/D0GR6.

Several of the Justices were critical of the Obama administration's decision to stop defending the law in court while still enforcing it. Chief Justice Roberts in particular voiced serious doubts about the Court's ability to adjudicate the merits of the case. He noted repeatedly that it was “totally unprecedented” for the Court to uphold appellate jurisdiction in a case where the parties on both sides ' in this case, the United States as well as the plaintiff, Edith Windsor ' agreed with the ruling of the court below. Id., DOMA
Tr. at 18-20.

The Justices' Questions on The Merits

On the merits of the Proposition 8 case, conservative Justices seemed inclined to side with the petitioners, who suggested that the ballot initiative expressed the will of the people of California to “hit the pause button” until more is learned about the long-term sociological effects of the “experiment” of same-sex marriage in the jurisdictions that have legalized it in the last few years. See Prop 8 Tr. at 19. Picking up on the argument that more needs to be known about the long-term effects of same-sex marriage, Justice Antonin Scalia noted his view that there is considerable disagreement among sociologists about whether it would harm a child to be raised in a same-sex household. Id. at 19-20. In a similar vein, Justice Alito questioned Solicitor General Donald Verrilli's argument in favor of same-sex marriage. Noting that “[t]raditional marriage has been around for thousands of years” while “[s]ame-sex marriage is very new[,]” Justice Alito questioned Verrilli's argument that the Court “ step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet[.]” Id. at 56. “On a question like that, of such fundamental importance,” Justice Alito asked, “why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?” Id.

Justice Kennedy countered the “hit-the-pause-button-until-we-know-more” argument, voicing a poignant concern about the immediate adverse effect of Proposition 8 and its denial to same-sex couples of the right to marry. He noted that “[t]here are some 40,000 children in California [who] live with same-sex parents, and they want their parents to have full recognition and full status[,]” eliciting a concession from Charles Cooper, counsel for the supporters of Proposition 8, that “ [t]he voice of those children is important in this case . '” Id. at 21.

In the Windsor arguments, Justices across the spectrum seemed troubled by DOMA. The Court's more conservative Justices asked questions about whether the DOMA statute creates a “federalism problem,” since it intrudes into the traditional role of the states to regulate marriage. The more liberal Justices seemed amenable to the argument that DOMA discriminates against same-sex couples and was passed with the clear intention of limiting the rights of an unpopular group. At the same time, several of the Justices (including Justice Kennedy) expressed skepticism of the argument, by former Solicitor General Paul Clement in support of the statute, that Congress passed DOMA not to discriminate but for the sake of having a uniform definition of marriage for purposes of federal law. See generally DOMA Tr. at 59-66.

What Will the Justices Do?

The Court will have an array of options in the same-sex marriage cases. In the Proposition 8 case, for instance, it could rule that no state may ban same-sex marriage; conversely, it could uphold Proposition 8, ruling that state bans on same-sex marriage do not violate the U.S. Constitution. Or it could make a narrow ruling that applies only to California. The Court could instead decide that the petitioners do not have legal standing to defend Proposition 8 in the wake of the decision by California state officials not to defend the measure. Similarly, the Court could hold that DOMA is unconstitutional because it impermissibly discriminates against same-sex couples who are permitted to marry under state law, or it could strike down the law on federalism grounds, because the definition of marriage is properly a question to be decided by the states and not by the federal government. But it is also possible that the Court will determine that it cannot adjudicate the case because the petitioners have no standing to defend DOMA or because ' inasmuch as the United States and Edith Windsor both agree with the ruling on appeal ' there is no case or controversy before the Court.”

In offering predictions about what the Court will do, it has escaped the attention of no one following these cases that Justice Kennedy wrote the majority opinion of the Court in both Lawrence v. Texas , 539 U.S. 558 (2003), and Romer v. Evans , 517 U.S. 620 (1996). In both cases, the Court reached pro-gay rights holdings. And both cases figured in the analyses of the Circuit Courts in the appeals now before the Justices. Fueling predictions of an outcome affirming the unconstitutionality of Proposition 8 and DOMA, supporters of marriage equality are looking to language used by Justice Kennedy in his opinions in Lawrence and Romer.

In striking down anti-sodomy laws in Lawrence, Justice Kennedy noted that:

our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ' These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. ' Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.

539 U.S. at 574 (citations and internal quotations omitted).

And in Romer, the Court struck down a proposed amendment to Colorado's Constitution (“Amendment 2″) that would have prohibited all legislative, executive or judicial action at any level of state or local government designed to protect gays and lesbians. Writing for the Court, Justice Kennedy noted that, as a result of Amendment 2,

[h]omosexuals ' are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies.

517 U.S. at 627. Concluding that the amendment violated the Equal Protection clause, Justice Kennedy wrote that “Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.” Id. at 635.'

It may well be that Justice Kennedy's vote will be decisive again if the Court reaches the merits of the question whether Proposition 8 and DOMA are constitutional. And it may well fall to Justice Kennedy to write one opinion that turns on whether the Ninth Circuit, in declaring Proposition 8 unconstitutional, properly applied the opinion he wrote for the Court in Romer or another opinion that turns on whether the Second Circuit properly applied his decision in Lawrence in striking down DOMA.

Conclusion

The Supreme Court's decisions to review the Proposition 8 and DOMA cases have raised the possibility of a landmark constitutional decision on whether the right to marry may be limited on the basis of sexual orientation. At the same time, the Justices have interjected questions about the standing of petitioners in both cases and even about its jurisdiction in the Second Circuit case. Depending on the answers to those questions, there may be no ruling on the merits at all, much less a sweeping constitutional ruling. Advocates on both sides of the debate have looked for clues in the Justices' questions at oral argument, but the Court has proved itself difficult to predict based on its questioning of counsel. These cases are no different in that respect; anything can happen. The only thing that can be said with any level of certainty is that decisions in both cases are expected to be handed down by the end of the Court's current term, in late June.

Frank Gulino, a member of this newsletter's Board of Editors as well as the ABA's Council of Appellate Lawyers, is an Associate Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University in Hempstead, NY.

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