Next week, the Supreme Court will hear oral arguments on the Defense of Marriage Act (DOMA) and Proposition 8. Only two things are certain. No decisions will be made, and activists and reporters will parse every word uttered to project how the Court will vote. To help you keep up with the rampant, pointless speculation, here is a primer on the cases, options and players.
Tuesday, 10 a.m. EDT. Hollingsworth v. Perry, “The Prop. 8 Case.”
There appear to be five possible resolutions to this case:
Proposition 8 is upheld, meaning bans on same-sex marriage, including California’s, are legal under the federal Constitution.
Proposition 8 is struck down on narrow grounds that apply only to California, leaving all other same-sex marriage bans in place.
Proposition 8 is struck down on grounds that would eventually end bans in all states (e.g., New Jersey, Colorado, California and more) that recognize same-sex relationships with almost everything but the word “marriage.”
All same-sex marriage bans are struck down as incompatible with the U.S. Constitution.
The justices decide that no one had the right to appeal in the first place, known as standing. Most likely, this eventually brings same-sex marriage back to California based on Judge Walker’s District Court decision, but the details are far from clear.
Wednesday, 10 a.m. EDT. United States v. Windsor, “The DOMA Case.”
Or more specifically, “The DOMA Section 3 Case.” (Section 2, which relates to states recognizing same-sex marriages performed in other states, isn’t on the table. Unless the Supreme Court decides it is.) LGBT advocates are more optimistic on this case, and there seem to be fewer options.
DOMA is struck down, meaning the federal government has to give equal benefits to same-sex spouses in states with marriage equality.
DOMA is upheld, forcing the government to continue denying marriage benefits to same-sex couples
The DOMA case could also be decided on standing, but is more complex, because neither the Bipartisan Legal Advisory Group nor the Department of Justice may have a right to be there. It is not clear that Congress as a whole, much less one party in the House, can defend a law if the Department of Justice (DOJ) doesn’t want to, and it’s not clear the DOJ can appeal a law to get a broader ruling when they agree with the Circuit Court, as Obama does. It’s not impossible that Edie Windsor gets her check while an avalanche of couples file similar lawsuits.
The lawyers
Most of the lawyers are unlikely to make news, as they have been arguing or filing briefs on these cases literally for years. “Yes on 8” forces (Hollingsworth) will be represented by Charles J. Cooper, while the DOMA will be represented by Paul Clement. The equality dream team of David Boies and Ted Olsen will argue against Prop. 8, along with representatives from the City and County (it’s the same thing) of San Franscisco.
The exception is Donald Verrilli, the solicitor general, who will represent the U.S. Department of Justice. While his arguments to DOMA will likely adhere to briefs, his eleventh hour inclusion in the Prop. 8 case is more interesting. The DOJ’s brief was clearly against Prop. 8, but didn’t expressly advocate overturning all state bans on same-sex marriage.
In a recent ABC interview, however, President Obama indicated he did not see how such a ban could be constitutional. If Verrilli makes that the official position of the U.S. government, expect court artists to draw shock and elation.
The justices
Four new justices have been appointed since Romer and Lawrence, making their views a little harder to gauge. Which doesn’t mean we can’t try.
Former Obama solicitor general and now Justice Elena Kagan is presumed to be against DOMA and Prop. 8, but as the most recent appointment and in her first role as a judge, she is in many ways the blankest slate.
In her appointment process, there was some concern that Justice Sonia Sotomayor’s Catholicism would be a barrier to supporting LGBT rights. Her support of college anti-discrimination laws in Hastings Christian Fellowship v. Martinez, and her response to a 6th grader plea for her same-sex parents seem to put her more firmly in the No on 8 column.
Chief Justice John Roberts is a conservative, but shocked many with his vote to uphold Obamacare. Given his relative youth and the rapidly increasing acceptance of same-sex marriage, some think he will look for a way to advance marriage equality if for no other reason than to avoid presiding over the Plessy v. Ferguson of LGBT issues, only to suffer the indignity of reversing himself. Using “standing” as an escape pod might be his preference, but if equality already has five votes, he might be No. 6.
Justice Samuel Alito is about as conservative as they come and is considered one of the most secure votes in favor of Prop. 8 and DOMA, despite lacking a track record on LGBT issues. If he has anything nice to say to Boies, Olsen and Verrilli, it would be a shock.
Justice Clarence Thomas dissented in Romer and Lawrence and is probably the only “Yes on 8” voter safer than Alito. He typically adheres to the idea that “if you don’t have anything nice to say, don’t say anything at all,” so if Thomas speaks in oral arguments for just the second time in seven years, whatever he says will make headlines.
Justice Stephen Breyer, who concurred in Romer and Lawrence, generally votes with the “liberal” bloc, and is counted by handicappers as a vote for marriage equality.
Justice Ruth Bader Ginsburg is where things get more interesting. Like Breyer, she concurred in Romer and Lawrence and is counted as a vote against DOMA and Prop. 8, but there are some wrinkles. In her majority opinion on Hastings, she managed to note that with regard to sexual orientation “the court has declined to distinguish between status and conduct.” If she can force the idea that there is precedent for the court believing sexual orientation is an immutable characteristic, the bar for DOMA and Prop. 8 may go beyond “rational basis”, and be very tough for the laws to clear.
Ginsburg has also noted, however, that Roe v. Wade may have prolonged and poisoned the debate over a woman’s right to choose by preventing it from being worked out in the states. She is also on record in Arizonans for Official English v. Arizona as being suspicious of the standing of ballot initiative supporters to appeal a decision their state will not. If she thinks it is premature for the Court to settle these issues, particularly Prop. 8, she may use standing to jump into the escape pod with Roberts.
It seems unlikely Justice Antonin Scalia personally supports same-sex marriage, but his record suggests his vote may be more in play that Alito and Thomas. When he isn’t stripping Florida of its right to determine its own members of the Electoral College (Bush v. Gore), Scalia is a firm proponent of states’ rights. Grilling Clement on federalism could suggest he is ready to overturn DOMA on those grounds.
Oddly, the most recent precedent for a constitutional right to same-sex marriage comes in Scalia’s dissent in Lawrence, which he says “… dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.” If Scalia is asking lawyers whether and how Lawrence is binding, he may be offering stare decisis (adhering to precedent) as a way to get on the right side of history without getting on the wrong side of conservatives. Unlikely, but a pleasant thought.
As the presumed swing vote and the author of Lawrence and Romer, all ears will be on Justice Anthony Kennedy. Look for the following phrases to tip his hand:
“Take away rights” – If the underpinning of the decision is that states can’t take back the right to marry once it’s given, we are likely looking a California specific decision to overturn Prop. 8. We may never know why, though, as it would require little more than saying “We affirm the Ninth Circuit decision.”
“Animus” – Focus here might suggest option 3, where states with civil unions and domestic partnerships get marriage equality. Based on Romer, it would allow a decision that being mean (animus) is the sole and unacceptable reason states would withhold the word marriage if they otherwise fully recognize same-sex relationships.
“Freedom” – If there is a common thread in Kennedy’s jurisprudence, it is expanding freedom. The more he focuses on freedom, the more likely he is to strike down all the marriage bans … if there are four other votes.
