In a year in which the Court has already weighed in on the constitutionality of both the Affordable Care Act and Arizona’s controversial immigration law, heard oral arguments in a challenge to the use of affirmative action by public universities, and announced that it will soon consider the constitutionality of Section 5 of the Voting Rights Act of 1965, which requires states with a history of discrimination at the polls to obtain federal approval before changing their voting procedures, the Justices are now poised to add to their plate yet another hot-button issue: same-sex marriage. At their private Conference tomorrow, the Justices will consider ten petitions for review, involving three separate issues relating to same-sex marriages. Let’s talk about the issues and the cases in Plain English.
Eight of the ten petitions ask the Court to review the constitutionality of Section 3 of the federal Defense of Marriage Act. Just to be clear, these cases are not about whether there is a constitutional right to same-sex marriage. Instead, the cases ask the Court to rule on whether Congress can pass a federal law that treats same-sex couples who are legally married under state law differently from married opposite-sex couples. Congress enacted the law, which is popularly known as DOMA, in 1996 in response to a ruling by the Hawaii Supreme Court which had suggested that it might be unconstitutional for the state to deny marriage to same-sex couples; then-President Bill Clinton signed it into law. Section 3 of DOMA defines marriage solely as a union between a man and a woman for purposes of federal laws and programs such as Social Security benefits, federal estate taxes, and federal income taxes.
As same-sex marriage became more common, gay and lesbian couples began to go to court to challenge DOMA, arguing that it was unconstitutional because it deprived married same-sex couples of the federal benefits available to their opposite-sex counterparts. Like the George W. Bush administration before it, the Obama administration initially defended the law against the challenges. However, in February of last year, the Department of Justice notified the courts that it would no longer defend the law. Instead, that role fell to the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives, which for purposes of the DOMA challenges is made up exclusively of Republican House leaders and is represented by former Solicitor General Paul Clement – who also argued against the federal government in the challenges to the Affordable Care Act and S.B. 1070.
One set of DOMA cases – making up three out of the eight DOMA petitions – originate in the U.S. Court of Appeals for the First Circuit. In May, that court became the first federal court of appeals to strike down DOMA as unconstitutional. That ruling virtually guaranteed that the Supreme Court would soon be the final arbiter of DOMA’s constitutionality: although nothing requires the Court to do so, it has a near-perfect record of granting review when a lower court has struck down a federal statute as unconstitutional. (Indeed, in a speech earlier this fall, Justice Ruth Bader Ginsburg told an audience in Colorado that the Court was “likely” to review DOMA by the end of June.) In the wake of the First Circuit’s decision, the federal government and BLAG both filed petitions seeking Supreme Court review; Massachusetts (where same-sex marriage is legal) then filed its own petition asking the Court, if it does review DOMA, to also rule on whether the law violates states’ rights by – for example – intruding on how a state regulates marriage.
The second set of cases – accounting for half of the eight DOMA petitions – hail from the U.S. Court of Appeals for the Second Circuit. These petitions originally came to the Court in a somewhat unusual procedural posture: after two federal district courts struck down the law as unconstitutional, the parties asked the Court to grant review without waiting for the federal appellate court to weigh in first. This strategy – which is known as seeking “certiorari before judgment” – is rarely used, as the Court usually prefers to have the benefit of the lower court’s views before deciding whether to grant a petition. However, with the First Circuit’s decision striking down DOMA, it became all but inevitable that the Court would take up DOMA soon, and the lawyers in the cases no doubt wanted to make sure that the Court had the option to take their cases as well.
But the wheels of the Supreme Court briefing process sometimes turn slowly, and before the petitions could go to the Justices, the Second Circuit issued its decision in the case of Edith Windsor, an octogenarian from New York who married Thea Spyer, her partner of more than forty years, in Canada in 2007. When Spyer died a few years later, she left Windsor her entire estate, which then came with the obligation to pay nearly four hundred thousand dollars in estate taxes that Windsor would not have had to pay if federal law recognized her marriage, which DOMA of course forbids. Windsor went to court, arguing that Section 3 of DOMA was unconstitutional, and the Second Circuit (like the district court before it) agreed.
The final DOMA challenge comes in the case of Karen Golinski, an attorney who works for the federal courts in California. After Golinski married her longtime same-sex partner in that state in 2008, she tried unsuccessfully to have her new spouse added to her health insurance; when the government refused, she filed a lawsuit in federal district court, which ruled in her favor. As it did in the Windsor case, the government is now asking the Supreme Court to grant review of that decision before the intermediate appellate court, the U.S. Court of Appeals for the Ninth Circuit, has a chance to do so.
Given the high stakes and strong feelings in the DOMA cases, it probably isn’t surprising that the different players in the cases do not agree on which case the Court should take; like Goldilocks’s chair, each side thinks that the Court should grant review in the case that is (at least from its perspective) “just right.” To the extent that facts matter to the Court, the Windsor case is arguably very compelling, and so the federal government has urged the Court to grant its petition in that case, with the Golinski case as an alternative. By contrast, BLAG contends that procedural complications – such as the fact that both Windsor and the federal government won in the lower courts – make the Windsor case a poor choice. Instead, BLAG has told the Court, it should grant its petition in one of the First Circuit cases.
Layered on top of the choice of cases is one more complication: the role of Justice Kagan. Based on papers that she submitted during her confirmation process, if the Court were to grant the government or BLAG’s petitions for review of the First Circuit’s decision, she would recuse herself from the case (and the closely related Massachusetts case) because she was involved in an earlier stage when she was the Solicitor General. Significantly, Justice Kagan did not mention any involvement in the Second Circuit case, so she would not recuse herself from those cases if the Court were to grant one of those petitions instead.
Even so, given how closely divided the Court could be on DOMA, as in the health care cases we may still hear a steady drumbeat of calls for her to recuse from all of the DOMA cases because she worked on that “issue” for the Obama administration. But the Justices have never applied such a loose standard for recusal, recognizing that it is important to have a full bench of nine members whenever possible.
Although the DOMA cases appear to be a sure bet for the Court’s review, the fates of two other cases involving same-sex marriage are slightly less certain. In one case, currently known as Hollingsworth v. Perry, opponents of same-sex marriage have asked the Court to review a challenge to the constitutionality of California’s Proposition 8, which amended that state’s constitution to prohibit same-sex marriage in California. Prop 8’s supporters once thought that this case might also be a lock for Supreme Court review: after a long trial, a federal district court declared the measure unconstitutional, in an opinion that declared a broad right to same-sex marriage generally. However (and perhaps not coincidentally), the case may have become a less attractive candidate for the Court’s review when it reached the intermediate appellate court, the U.S. Court of Appeals for the Ninth Circuit. That court made clear that, to determine whether Prop 8 is constitutional, it did not need to decide whether there is a general constitutional right to same-sex marriage. Instead, it reasoned, all that matters is that Prop 8 took away a right to same-sex marriage that had existed in California as a result of a decision by the California Supreme Court. And it did so in part because its supporters were hostile to gays and lesbians, which is precisely the kind of conduct that the Supreme Court prohibited in 1996 in Romer v. Evans. In that case, the Court held that an amendment to the Colorado constitution which prohibited the state and local governments from adopting laws or policies to protect gays and lesbians from discrimination violated the federal Constitution.
The challengers to Prop 8 are represented by Ted Olson and David Boies, two super-lawyers who may be best known for their representation of George Bush and Al Gore, respectively, in Bush v. Gore. In their brief opposing Supreme Court review, Olson and Boies acknowledged that the case is an “interesting” one, but they argued that it doesn’t really break new legal ground. Instead, they asserted, the lower court’s decision is simply a straightforward application of the Court’s decision in Romer, and there is no disagreement among the lower courts on the issue presented by the case – one of the traditional criteria that the Court considers in deciding whether to grant review. To the extent that the Court might have any remaining doubts, they added, it is not even clear that Prop 8’s supporters even have standing – that is, a legal right – to defend the law, when they haven’t demonstrated that they would be personally injured if same-sex couples were allowed to get married in California.
Will the arguments made by Olson and Boies be enough to persuade the Court to deny review, or will the Court regard the case as too important to pass up? Of course, if the Court grants the DOMA cases, it does have a third option in the Prop 8 case: not acting on the petition at all. In that scenario, which would take several months, the Justices would wait to see whether the Court’s opinion in the DOMA cases affects their decision whether to grant review in Prop 8.
The tenth petition that the Justices will consider tomorrow involves a challenge to an Arizona law that would have provided health insurance benefits only to the spouses of state employees – a measure that would have stripped such benefits from the domestic partners of state employees, who had previously been eligible for them. A group of gay and lesbian state employees went to a federal court to challenge the law, arguing that it discriminated against them because, under Arizona law, they cannot get married. By contrast, they contended, other state employees can keep the benefits for their opposite-sex domestic partners simply by getting married. Although the state argued that the change was made primarily to save money, and that there was no evidence that it was intended to discriminate against gays and lesbians, the lower courts blocked the law from going into effect. The state now seeks review of that decision.
One last consideration that makes the Court’s consideration of the same-sex marriage petitions even more interesting is the election-day spate of victories for same-sex marriage advocates in Maryland, Maine, and Washington. Of course, these referenda are not directly before the Court, but that hasn’t stopped the debate about the effect that these votes might have on the Court’s decision. On the one hand, opponents of same-sex marriage can point to these victories as proof that judges don’t need to declare a constitutional right to same-sex marriage; the democratic process is working, and gays and lesbians clearly wield substantial power in that process. On the other hand, many scholars of the Court have argued that the Justices’ views on social issues tend to mirror public opinion, which is now moving in favor of same-sex marriage. We will know much more in the days and weeks to come; as events unfold, we will be here to cover them in Plain English.