Politically Aware
BY JOEL TRAMBLEY
Court predictions hew closely to the axiom “Those who know don’t talk, those who talk don’t know.” Having nothing but an MD to back my legal analysis, I fall firmly in the latter camp. But here we go.
Of the various cases about the Defense of Marriage Act (DOMA) on the docket, the Court’s choice to take United States vs. Windsor is arguably good news for fans of marriage equality. In Windsor, the Second Circuit Court of Appeals rejected the constitutionality of Part III of DOMA, which defines marriage as a union between a man and a woman for federal purposes. It is the case the Justice Department, who agrees that DOMA Part III is unconstitutional, asked the Court to take. It also keeps the typically liberal Justice Kagan in the game. Had the Court chosen a case she worked on as solicitor general, she might have recused herself.
The presumption is that at least Justices Ginsberg, Sotomayor and Breyer will join Kagan in favor of upholding Windsor and invalidating DOMA Part III. Same-sex marriage supporters express optimism that Justice Kennedy will provide the necessary fifth vote, since he supported both state rights and gay rights in the past. Striking down DOMA serves both interests. The specter of the federal government defining marriage, an issue long left to the states, may bring 10th Amendment proponents like Justice Scalia and Roberts into an even broader majority. As a judicial undercard is the possibility the Court will define the standard of scrutiny to be applied for future LGBT discrimination cases.
Hollingsworth vs. Perry, the Proposition 8 case, is harder to predict because there appear to be more possibilities. The same four liberal justices are believed to support the Ninth Circuit decision to invalidate Proposition 8 on the basis that it took away an existing right, which would only apply to California. That decision was clearly written as an extension of Justice Kennedy’s Romer vs. Evans opinion. If Kennedy agrees, he could be the fifth vote to uphold the Ninth Circuit opinion. Should Kennedy want to go further, he might lead the liberal bloc to extending marriage equality to states with an “everything but marriage” law, or overturn all same-sex marriage bans. The latter would be an uncharacteristically large step for a typically incrementalist Court.
Unlike Windsor, the Prop. 8 case pits gay rights against state rights, making Kennedy’s vote more of a reach. If Kennedy won’t join the liberals in at least restoring same-sex marriage to California, they may look to Chief Justice Roberts. The in-vogue thinking is that Roberts sees the trend lines and may join a decision in favor of marriage equality to avoid the indignity of presiding over the reversal of his own opinion.
All of this assumes that either case gets to the merits, but the Court’s addition of standing questions should not be overlooked. Regarding Prop. 8, whether proponents of an initiative have standing to appeal has clearly been on the Court’s mind since Justice Ginsburg expressed “grave doubts” about the possibility in 1997. In that case, however, Arizona had not specifically allowed initiative proponents to represent the state, which the California Supreme Court did in response to a question from the Ninth Circuit.
Hopefully (?), the Court added the question planning to grant standing but clarify the issue, because the other possibility is messy. If the Court finds the backers of Prop. 8 to lack standing, it may be hard for them to move to the merits, the effect of which is unclear but might restore same-sex marriage in California in a round-about way involving the clerk of Alameda County and the need for consistent state policy in ministerial function. Seriously.
In Windsor, the Court will consider two questions of standing. First, can the administration ask the Court to take a case that they won? Second, if the Executive Branch won’t defend a case, can the Bilateral Legal Advisory Group (BLAG) from the House step in? If the answer to both questions is no, then the Court may decide they have no jurisdiction, which likely ends DOMA Part III in the Second Circuit. If one of the government bodies has standing, the presence of Edie Windsor as a real, live, damaged party should allow the Court to proceed to the merits.
Prepare to keep splitting these hairs until oral arguments in March, which should clear things up. Or not. After oral arguments, experts wrote the obituaries of Obamacare barring a swing vote from Justice Kennedy. None of the people talking knew Chief Justice Roberts would uphold the law on a largely overlooked taxation argument. But we’ll keep talking until June. Then we’ll know, and we won’t talk – we’ll cheer or cry.
