Supreme Confidence

Looked at one way, the US Supreme Court [1] makes history every time they meet. In theory, they only hear the most important cases; the ones that bring up vital constitutional questions. But the truth is that there are only a handful of truly significant cases that change the shape of American society. Marbury v. Madison, which established the SCOTUS as the ultimate arbiter. Worcester v. Georgia, which established that the SCOTUS was powerless to enforce its rulings [2]. Dredd Scott v. Sanford, which said that slavery was allowed. Brown v. Board of Education, which overthrew the “separate but equal” doctrine established just a few years earlier and set the stage for full civil rights.Loving v. Virginia, which threw out all miscegenation laws (though some folks still haven’t gotten the memo). Roe v. Wade, which established the right to medical advice and methods (including but not limited to abortion).

This week, we get to see two such cases before the SCOTUS and may get a ruling on one or both of them come next June [3]. Interestingly, both cases deal with different aspects of the same question: is same-sex marriage a constitutional right?

The first case attacks the question head-on. In Hollingsworth v. Perry [4], Kristin Perry is suing the state of California for a marriage license on the basis that the amendment to California’s constitution that forbids giving her one is unconstitutional on a federal level because it took away a right that she had previously had [5]. In the arguments before the SCOTUS, two major themes dominated.

First, several members of the court questioned the standing of the Proposition 8 defenders; what material harm would they suffer if gays were allowed to marry. This is a crucial point, because if the actions of another person do not harm you then you have no standing and the case is dismissed as being “improvidently granted” [6]. When that happens, the last decision stands; in this case, Proposition 8 would be removed as being unconstitutional.

Then, the people defending Proposition 8 argued that because the main purpose of marriage is procreation, gays shouldn’t need it. Kagan put the kibosh on that argument when she asked if that meant we should forbid marriage among straight couples when both partners are over fifty-five and the Proposition 8 people said that doing so would be unconstitutional.

A variety of other claims were made, but those two are most likely to be the fulcrum on which the decision rests. If a majority of the justices decide that now is not the time to discuss this, then they’ll use standing to dismiss the case. And if a majority of justices decide to make a broad ruling, then they’ll use the lack of arguments against it.

The second case is both broader and narrower than Hollingsworth v. Perry. In Windsor v. United States, a widower has argued that the Defense of Marriage Act [7] unfairly discriminates against her marriage by making her subject to additional burdens including an estate tax that she was forced to pay when a straight widower wouldn’t have had to. The case is narrower because it doesn’t directly concern the definition of marriage, merely on the effects of it. But it is broader because where a ruling in Hollingsworth v. Perry could be limited to California, a ruling against the Defense of Marriage Act would have national repercussions.

Interestingly, the question of standing rose again and again it was on the part of the defenders of the law. As with California, the government official who should be defending the law (President Obama in this case, Governor brown in the previous) has decided that the statute is truly unconstitutional and declined to defend it. Unlike California, a group of government officials (Republican Representatives, mostly) have stepped in. However, the justices have been unimpressed with their argument for standing, calling the situation “unprecedented”. And if there’s one thing that the SCOTUS hates, it is an unprecedented situation. Thus, they may dismiss this case as improvidently granted, which again leaves the prior ruling (that DOMA is unconstitutional) in place. However, that would leave DOMA unconstitutional in one part of the country and constitutional in others as the rulings of District courts only apply within those districts. So dismissal is unlikely.

Thus far, the arguments for DOMA appear to break down into three main categories: it simplifies things, it provides historical continuity, and it is what people want. Thus far, the justices seem to be unswayed by any of the arguments. For example, Kagan, Ginsburg, and Kennedy have suggested that DOMA actually complicates things by discriminating between a marriage between these two people (who just happen to be of different sexes) and these two people (who just happen to be the same sex); given that the SCOTUS ruled in Loving that marriage was a fundamental civil right and that laws restricting marriage had to have a reason deeper than “we’ve always done it that way”, I do not expect the “simple” explanation to be successful.

Interestingly, the attorneys arguing to have DOMA striken haven’t made what I think would be the strongest argument that they can: that marriage is a civil contract and the US Constitution requires that contracts be treated equally. Instead, they’ve been focusing on the discriminatory aspect of DOMA.

So what will happen in the two cases? And how will they interact? I’ve broken down the possible rulings on the two cases below:

Hollingsworth v. Perry Improvidently granted Upholds Proposition 8 Removes Proposition 8
Most likely outcome; would allow decision to become moot if DOMA is decided broadly. Status of same-sex marriage would depend on breadth of DOMA decision. Extremely unlikely. This would be seen as Roberts’ <I>Dredd Scott</I>. Would temporarily stop same-sex marriage in California, but would also leave door open for a new amendment to repeal Proposition 8. Possible; it would follow previous cases establishing that laws passed just for spite are unconstitutional. Wouldn’t affect same-sex marriage outside of California, which makes it attractive to justices who hate broad rulings.
Windsor v. United States Improvidently granted Upholds DOMA Removes DOMA
Very possible, given Obama’s strange position (won’t defend it but will enforce it). Would leave same-sex marriage as a state-by-state battleground, which may make it attractive to some justices. But leaves law unsettled, which none of the justices like. Unlikely, as it would create a new “separate but equal” doctrine. Would make same-sex marriage a state-by-state proposition (so to speak). Most likely, but probably only in a narrow decision that says “if your state recognizes your marriage, then the feds must also”. This creates uniformity while allowing states to continue to decide the marriages for themselves. A broad decision ruling that gays have an inherent right to marry is extremely unlikely.

Overall, I think that a narrow ruling on Windsor v. United States is the most likely outcome, with six of the nine justices holding that it is wrong for the federal government to discriminate against a particular form of marriage when it comes to tax laws and other federal benefits[8] without holding that marriage is a civil right for gays as well as straights. I also expect a ruling of “improvidently granted due to lack of standing” in Hollingsworth v. Perry; the Proposition 8 folks failed to provide a single instance of actual harm caused by same-sex marriage and so are likely to be kicked out on that. It also allows for a narrow interpretation, which will make the justices happy given the implications of the Windsor v. United States ruling.

The most important implication is that the battle over same-sex marriage isn’t over. Within a few years, someone married in Maryland will move to Texas and sue the state for failure to recognize their marriage; if not those two states in particular, then their equivalents. And that will bring that full faith and credit clause right up to the front and center of the argument, at which point it will all be over but the shouting [9].


[1] Called SCOTUS for short, they are part of the “balance of power” arrangement by the Founding Fathers. Basically, they were intended to call “balls and strikes” in the memorable words of one justice, but as is always the case when they make a call that goes against your team [a], it stings.

[2] Basically, the SCOTUS ruled that Georgia couldn’t make rules on Cherokee land (including kicking them off just because gold had been found on it). Andrew Jackson ignored the ruling, fearing that supporting Indian rights would start the civil war that he was trying to prevent, and sent the Cherokees on the Trail of Tears march.

[3] Why the delay between hearing the arguments and making the ruling? Primarily because it gives the justices a chance to hash out the ruling in private. Until that ruling is issued, nothing is final; Kennedy famously changed sides on Lawrence v. Texas while he was writing the dissent and ended up writing the majority opinion. Justices will spend those months exploring each other’s ideas and arguments in favor of and against a particular position, and working with their staffs to discover what case law currently exists.

[4] Which started out as Perry v. Schwarzenegger, then became Perry v. Brown as California changed governors. It morphed into its final form after the current governor refused to defend Proposition 8 in the courts.

[5] In case you’ve been living under a rock (lucky you!), California’s Supreme Court had ruled on June 16, 2008, that marriage was a basic civic right (basing its ruling on Loving v Virginia). This then started a fierce and intemperate campaign to undo the “legislating from the bench”, culminating in the passage of Proposition 8 on October 22, 2008, which redefined marriage so that gays could no longer marry and possibly undoing the marriages of those who had already grabbed the gold ring (accounts vary as to whether such was the intent of the law). Perry (and several others) sued and lost in the State Supreme Court, then took their case to the US District Court, where they won. They won again at the Ninth District Court of Appeals, and are now before the SCOTUS.

[6] That happened several times to other civil rights cases before Brown v. Board of Education made it through the SCOTUS. In general, “improvidently granted” can be based on any of a number of causes, from lack of standing (which means you don’t get to try it again later) to unresolved questions (which may bring it right back to the SCOTUS once they are resolved) to “not as important was we thought” (which is rarely admitted but often true).

[7] Passed in 1996 during the last high-water mark of gay rights, when it looked likely that several states [b] would allow gay marriage. The folks in Congress knew two things: (1) The US Constitution required that a marriage in one state be recognized by all other states via the “full faith and credit clause”[c] and (2) the general populace would tar and feather them if they didn’t pull an Andrew Jackson and find a way around the Constitutional requirement. They used the second part of the clause to claim that the “manner in which such Act … shall be proved” would be to ignore them. I expect that to bite the defenders in the butt during the arguments, and is why “states rights” arguments on this matter are inherently bogus.

[8] Specifically: Kagan, Ginsburg, Sotomayor, Breyer, and Kennedy holding for Windsor (Kennedy writing for the majority), with a separate and more limited holding for Windsor from Roberts. Alito, Thomas, and Scalia holding for the “government” (Scalia writing for the minority).

[9] Then again, given that people are still shouting about Roe v. Wade some forty years later, it may take awhile for the hubbub to die down.

[a] In my case, the worst call that they’ve made recently was the one against the prisoners at Guantanamo, saying that they had no standing [i] to sue over being incarcerated even after being declared innocent. If this doesn’t scare you, then you’re not paying attention.

[b] Starting with Hawai’i, where the state supreme court had ruled in 1993 that there was no compelling interest in prohibiting same-sex marriage, clearing the way for gay marriage.

[c] Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

[i] In legal-speak, that basically means that they are not materially harmed by the current situation. This will be important in a moment.


One thought on “Supreme Confidence

  1. You made so many good points in this article, I don’t even know where to begin. So I’ll just say “thank you” for the informative and entertaining summary of this hub-bub.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s