As expected, the Supreme Court has agreed to hear the
same-sex marriage cases. Come June of
2013 we will know more than now about these matters, but what will we
know? Here are some speculations.
United States v. Windsor poses the
question of whether section 3 of DOMA violates the equal protection
guarantee. That section denies any of
the status benefits of marriage under federal law to couples of the same sex
who are lawfully married under state law.
The threshold issue is whether the Court lacks jurisdiction because the
federal government agrees with the 2d Circuit decision or because the House
leadership lacks standing to defend DOMA.
The question is whether the House leadership has suffered actual
particularized injury in fact. The
liberal four on the Court are usually easy to satisfy on standing issues, but
if they sense that the ruling on the merits is likely to be adverse to their
views, they may suddenly become standing hard-liners. And the conservatives, who can usually be
counted on to confine standing, may become standing liberals if they sense that
they will prevail on the merits.
On the
merits, if the Court continues to apply minimal scrutiny to this classification
on the basis of sexual orientation, the challengers must prove either that
there is no conceivable legitimate purpose for the classification or that there
is no conceivable rational connection between a hypothetical legitimate purpose
and the classification. In theory, the
challengers have a tough road under this test:
It is certainly a legitimate
purpose to conserve money, or to limit the cost of such benefits to the marital
relation that was understood to exist at the time Congress enacted these
benefits, and denying federal marital benefits to same-sex couples does just
that. It is at least conceivably
rational for Congress to think that denying those benefits to lawfully married
same-sex couples furthers the government’s interests in conserving money and
limiting benefits to persons married in the form that Congress understood
marriage to be when it extended the benefits.
But this analysis will strike most people as much too thin. If that is so, it is because the distinction
between lawfully married same-sex couples and lawfully married opposite-sex
couples seems to be illegitimate. And
here the argument veers into federalism – Congress chose to rely upon state
definitions of marriage when it extended federal benefits to married couples so
it implicitly incorporated state choice into the federal scheme. Having done so, DOMA can be characterized as
an act of spite, a burst of legislative hostility to homosexuals that, as in Romer
v. Evans, is the real purpose of the law, and thus as illegitimate as
Colorado’s Amendment 2 or the legislative attempt to deny food stamps to hippie
households, struck down in USDA v. Moreno.
So, on the merits the Court can (1) apply minimal scrutiny uncritically
(and uphold section 3 of DOMA), (2) apply the Romer tactic of characterizing the actual purpose of the law to be
illegitimate (and strike sec. 3 while still adhering to minimal scrutiny), or (3)
jack up the level of scrutiny to intermediate or strict in order to void sec.
3. Which will it do? I’ll bet on (2), with Justice Kennedy joining
the liberals to find standing and reach the merits conclusion I have
outlined.
Hollingsworth v. Perry is the California
Proposition 8 case. The California
Supreme Court ruled that the state constitution compelled recognition of
same-sex marriage, the voters then overturned the decision by a constitutional
amendment, and this litigation ensued.
The Ninth Circuit, in an opinion by Judge Reinhardt, ruled that since
the only effect of the amendment was to deny the label of “marriage” to
same-sex unions (because California’s domestic partnership law continued to
extend all the status benefits of marriage to registered domestic partners), Proposition
8 was a mere expression of animus towards homosexuals and thus akin to Romer and Moreno. Again, the Court has asked for briefing on
the standing question, as California declined to defend Prop 8 and its
defenders became the proponents of the proposition. Much the same standing dance may occur here
as in Windsor, but there are some
complicating elements. First, what’s the
effect of a conclusion that there was no standing? Does it result in a vacation of the District
Court decision as well as the Ninth Circuit ruling, or only a vacation of the Ninth
Circuit opinion? If the former, it’s
back to square one (assuming the leftist Governor and Attorney General of
California decline to defend Prop 8). If
the latter, Judge Walker’s decision stands but may only provide relief to the
litigants before him.
The merits
raises the large and divisive question of whether the political process should
be foreclosed by a Court ruling striking down bars to same-sex marriage, or
whether the rapid evolution of marriage laws in the states should be permitted
to continue on a state-by-state basis.
Given the vexing legacy of Roe v. Wade, it would not surprise me if the
Court decides on the latter course. If
so, it could do so by finding a lack of standing (which result provides only a
brief reprieve from the issue, as other cases will come to it with litigants
that undeniably have standing), or by a merits ruling that finds no
constitutional violation in limiting marriage to opposite-sex partners (a
result that would inflame gay activists but which leaves states free to change
their laws as public opinion evolves).
That result may not be unpalatable to the Court if it strikes section 3
of DOMA on the merits, as I speculate above.
We shall see, but as with icebergs we
shall see only the tip and are left to speculate about the mass under the
surface.
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