The following is an essay for our  same-sex marriage symposium by Carlos A. Ball, professor at the Rutgers University School of Law (Newark). Professor Ball is the author of The Right to be Parents: LGBT Families and the Transformation of Parenthood (NYU Press), which will be published early next year. He is also the author of From the Closet to the Courtroom: Five LGBT Lawsuits That Have Changed Our Nation (Beacon).

After federal district court judge Vaughn Walker struck down California's Proposition 8 as unconstitutional last August in Perry v. Schwarzenegger, it seemed that the question of whether states can, consistent with the Fourteenth Amendment, deny same-sex couples the opportunity to marry was quickly heading for the Supreme Court. Twelve months later, however, the Perry case has become bogged down by the question of whether Proposition 8 proponents have standing to defend its constitutionality. Earlier this year, a panel of the U.S. Court of Appeals for the Ninth Circuit certified a standing-related question to the California Supreme Court. Given that the California court is not expected to issue its response until the end of the year, and that, however the federal appellate court panel subsequently rules, it is likely that the full Ninth Circuit will review the case en banc, it will probably be at least a year (and maybe more) before the Supreme Court is asked to consider hearing the case.

In the meantime, a number of constitutional challenges to Section 3 of the Defense of Marriage Act of 1996 (DOMA)"”the provision that defines marriage for federal purposes as a union between one man and one woman"”continue to move through the courts. The DOMA litigation that is farthest along is Gill v. Office of Personnel Management. Last summer, Boston federal district court Joseph Tauro ruled in Gill that DOMA violated the plaintiffs' rights to equal protection. (Judge Tauro, in an accompanying case, also held that DOMA violated the Tenth Amendment and the Spending Clause.) The plaintiffs in Gill, seeking to bypass a ruling by a three-judge panel, have filed a petition with the First Circuit requesting immediate en banc review.

After the Obama Administration announced in February that it would no longer defend DOMA's constitutionality in the courts, the Republican leadership of the U.S. House of Representatives hired former Solicitor General Paul Clement to defend the statute in Gill and in other DOMA cases brought in California, Connecticut, and New York. Last month, Clement informed the First Circuit that the House of Representatives did not oppose an en banc review of Gill.

In my estimation, the (possible) speeding up of Gill and the slowing down of Perry is a positive development for marriage equality supporters. This is because I believe that, as an initial matter, the chances of prevailing before the Supreme Court in cases like Gill are greater than those of prevailing in cases like Perry. The issue in Gill is not whether states are constitutionally required to recognize same-sex marriages, but is instead whether the federal government can justify its refusal to recognize the marriages of some Americans but not of others. The Gill plaintiffs are not claiming that they have a constitutional right to marry; instead, they are arguing that the federal government lacks a valid justification for denying benefits under the Social Security Act and the Federal Employees Health Benefits Program, for example, to some couples (i.e., same-sex ones) who are married under their states' laws. This means that in deciding Gill, unlike in deciding Perry, the Supreme Court would not have to address the more controversial question of whether the federal Constitution mandates that all states allow same-sex marriages.

One question that the Supreme Court may tackle in Gill or Perry is whether the Constitution requires that heightened scrutiny be applied to laws that make distinctions on the basis of sexual orientation. But here as well, marriage equality supporters would be better off if the Court grappled with that question in the context of DOMA rather than in that of Proposition 8. This is because the Obama Administration is forcefully taking the position in court that heightened scrutiny should apply to sexual orientation classifications. In a brief filed last month in Golinski v. Office of Personnel Management, a case challenging DOMA's constitutionality that is before a California federal district court, the Department of Justice strongly opposed a motion to dismiss filed by the House of Representatives. In their brief, government lawyers detailed the long history of discrimination against lesbians and gay men engaged in by federal, state, and local governments, as well as by private parties. The brief also explained why lesbians and gay men have limited political power and the reasons why sexual orientation does not implicate the ability of individuals to participate in or contribute to society. The executive branch of the federal government, in other words, is taking the position that laws which make distinctions on the basis of sexual orientation should be presumptively unconstitutional.

It is one thing for plaintiffs in cases like Gill and Perry to argue that sexual orientation classifications merit heightened judicial scrutiny. It is quite another for the Department of Justice to do the same.

It is widely believed that if the Supreme Court agrees to hear a case involving same-sex marriage, Justice Anthony Kennedy will cast the deciding vote. It would seem that Justice Kennedy, given his prior opinions in Romer v. Evans and Lawrence v. Texas, is aware of the harm that discrimination has inflicted on lesbians and gay men through the decades. In Romer, Justice Kennedy was able to look beyond Colorado's specious claim that a state constitutional provision (Amendment 2) that denied antidiscrimination protection to lesbians, gay men, and bisexuals (and no others) did nothing more than deprive them of "special rights." Indeed, as he made clear in his majority opinion in Romer, Justice Kennedy saw Amendment 2 for what it was, namely, a brazen and unprecedented effort to codify discrimination against gay people in the state constitution.

And in writing for the Court in Lawrence, Justice Kennedy made clear that he understood the ways in which sodomy laws were used to demean the humanity of gay people and to justify a long list of discriminatory practices against them. Given Justice Kennedy's clearly expressed views on these issues, there is a good chance he will agree with the Department of Justice, in a case like Gill, that courts should apply a presumption that the government acts unconstitutionally when it treats individuals differently because of their sexual orientation.

It is true, of course, that the Supreme Court could side with the Gill plaintiffs without applying heightened scrutiny. The Court, in other words, could hold that DOMA does not pass constitutional muster even under the rational basis test, the most deferential standard of judicial review. This is what the Court ostensibly did when it struck down Colorado's Amendment 2 in Romer. But there are two important differences between Romer and Gill. First, the Romer plaintiffs did not argue before the Supreme Court that heightened scrutiny should apply to sexual orientation classifications (that argument was relegated to the amicus briefs). In contrast, the Gill plaintiffs have made heightened scrutiny a cornerstone of their case and they would likely continue to do so if their lawsuit reaches the Supreme Court.

Second, in Romer, the government did not contend "“ as it is doing in the DOMA cases "“ that heightened judicial scrutiny is appropriate whenever the state classifies individuals according to sexual orientation. Again, it is one thing for lesbian and gay plaintiffs to make that argument; it is quite another for the executive branch of the federal government to do the same.

If the Supreme Court were to hold in a case like Gill that the government must defend the constitutionality of laws that treat individuals differently because of their sexual orientation by satisfying intermediate heightened scrutiny (the same level of judicial review that applies to gender classifications), then that would significantly increase the chances of success in cases, like Perry, that deal directly with the question of the state's authority to deny same-sex couples the opportunity to marry. Every court that has applied heightened scrutiny in assessing the constitutionality of same-sex marriage bans has struck them down.

All of this makes the question of timing a crucial one. From a marriage equality perspective, DOMA should go to the Supreme Court first, and Proposition 8 should go second.

Posted in Featured, Same-Sex Marriage

Recommended Citation: Carlos Ball, Why timing is crucial in the ongoing same-sex marriage cases, SCOTUSblog (Aug. 17, 2011, 10:45 AM), http://www.scotusblog.com/2011/08/why-timing-is-crucial-in-the-ongoing-same-sex-marriage-cases/