Earlier this month, I explained that the briefs in Hollingsworth v. Perry offered the Justices five possible ways to resolve the case:  dismissal of the Proposition 8 sponsors’ petition for lack of appellate standing; reversal on the merits (upholding Proposition 8); and three different ways of striking down Proposition 8 (a California-only judgment; a ruling that would guarantee same-sex marriage in the eight states that already offer all the benefits and other incidents of marriage; and a sweeping ruling that would provide a constitutional right to same-sex marriage nationwide).

Tom is right, however, that Tuesday’s oral argument raised the possibility of at least two additional outcomes:  that the Court might dismiss the petition as improvidently granted – a “DIG”; or that the Court could vacate the court of appeals’ decision and remand the case for reconsideration in light of whatever the Court does in Windsor, the DOMA case.

So which of these seven outcomes is most likely?  Making such a prediction based on the oral argument is a fool’s errand, quite frankly:  This is not the sort of case in which the Justices were clearly tipping their hand; indeed, it appears likely that some of them were not yet certain at argument how they would ultimately vote.

Even so, it does strike me that four of the outcomes are now relatively unlikely, and a fifth, the “DIG,” is intriguing but also something of a longshot.

The less likely outcomes

There certainly did not appear to be a majority of Justices prepared to issue a ruling on the merits that would resolve the same-sex marriage question nationwide, in either direction – that states categorically can, or cannot, deny marriage to same-sex couples.  Nor did the Justices spend any time on the “California-only” rationale on which the court of appeals relied, save for a single general question from Justice Sotomayor to Ted Olson that engendered no discussion at all.

Tom’s idea that the Court might remand the case to the Ninth Circuit for reconsideration in light of the Court’s Windsor decision will certainly be an intriguing notion to some Justices.  But it’s difficult to see what the Court might say in Windsor that would affect the Ninth Circuit’s rationale.  To be sure, if the Court were to uphold the constitutionality of DOMA Section 3, or were to hold more broadly that discrimination based upon sexual orientation is subject only to the most deferential, Williamson v. Lee Optical form of “rational basis review,” then a remand in Perry would make sense.  But I think most observers will agree with me that neither of those are very likely outcomes in Windsor.  And absent such a holding in the DOMA case, it’s difficult to envision a vacate-and-remand order that would not result in the Ninth Circuit reaffirming its previous ruling without too much delay.

If the Court does not vacate and remand, that would leave three options in Perry:  a “DIG”: a dismissal of the appeal on standing grounds; and the “eight-state” ruling.

“DIG” it?

I agree with Tom that it now appears quite possible the votes to grant certiorari in Perry came from the four Justices most inclined to uphold Proposition 8 – and that Justice Kennedy, by contrast, might well have voted to deny cert.  At a minimum, Justice Kennedy is now openly wondering whether “the case was properly granted.”

Assuming that five Justices voted to deny cert., could those same five Justices now dismiss the petition as improvidently granted?  At oral argument, Justice Scalia suggested that “it’s too late for that now,” since “we granted cert.” and thus “have crossed that river.”

But this river is not the Rubicon.  Such a result is indeed unusual, because of an internal Court norm designed to preserve the “Rule of Four” at the cert. stage.  But five-four decisions to DIG are hardly unheard of – most recently, for example, in Robertson v. U.S. ex rel. Watson (2010).  (Nor has Justice Scalia himself always been so keen to preserve the decision of four Justices to grant cert.:  In Hamilton v. Texas (1990),  for instance, he joined four other Justices in voting to deny an application for stay of an execution, allowing Texas to put to death a prisoner who had successfully petitioned for cert. . . . and thereby failing to preserve the Court’s own jurisdiction even to hear the case.)  And, as Tom notes, there has been at least one case, Connecticut v. Johnson (1983), in which the same practical result occurred by virtue of the decision of only one Justice that cert. was improvidently granted:  the other eight Justices split four to four on the merits and the judgment below was thus “allow[ed] to stand”  without establishing a Supreme Court precedent.   [I recommend Richard L. Revesz and Pamela S. Karlan on this general topic.]  To be sure, the Court’s norm is that the Justices who voted to deny cert. will not vote to DIG unless there has been an “intervening development” that justifies the dismissal.  And Justice Kennedy, in particular, has not demonstrated a propensity to DIG a case after the Court has heard argument – he dissented from the DIG, for example, in the Robertson case cited above, as well as in, for example, Nike, Inc. v. Kasky (2003), Rogers v. United States (1998), and Ticor Title Insurance Co. v. Brown (1994).

Therefore I don’t think there’s a strong likelihood of a DIG in Perry, since it’s not immediately obvious what the Court knows now that was not apparent at the cert. stage.  Still, it’s not out of the question by any means.  In a concurring opinion in New York v. Uplinger (1984), Justice Stevens articulated his view that an “intervening development” justifying a DIG can be, quite simply, that the Justices have “considered [the] case more carefully after full briefing and argument on the merits than they could at the time of the certiorari conference” – and that although such a reason for DIG-ing should generally be disfavored, it can be justifiable when the case raises a constitutional issue “of first impression.”  Justice Stevens’s reasoning in support of the DIG in Uplinger (a case in which the Court avoided ruling on the issue it would later address in Bowers v. Hardwick and Lawrence v. Texas) strikingly resonates with the concerns Justice Kennedy raised at oral argument on Tuesday:

A decision on the merits does, of course, have serious consequences, particularly when a constitutional issue is raised, and most especially when the constitutional issue presents questions of first impression.  The decision to decide a constitutional question may be the most momentous decision that can be made in a case.  Fundamental principles of constitutional adjudication counsel against premature consideration of constitutional questions and demand that such questions be presented in a context conducive to the most searching analysis possible.  See generally Ashwander v. TVA (1936) (Brandeis, J., concurring).  The policy of judicial restraint is most salient in this Court, given its role as the ultimate expositor of the meaning of the Constitution, and “perhaps the most effective implement for making the policy effective has been the certiorari jurisdiction conferred upon this Court by Congress.”  Rescue Army v. Municipal Court (1947).  If a majority is convinced after studying the case that its posture, record, or presentation of issues makes it an unwise vehicle for exercising the “gravest and most delicate” function that this Court is called upon to perform, the Rule of Four should not reach so far as to compel the majority to decide the case.

In the event the Court (or even the “swing “Justice) does decide to “DIG” Perry, the court of appeals’ judgment would remain intact . . . which would in effect be equivalent to a statewide “injunction,” because Judge Reinhardt’s opinion would have stare decisis effect in California unless and until the Ninth Circuit granted a petition for en banc review (something it refused to do in Perry itself), or the Supreme Court decides to reconsider the question in another case, assuming any party has standing to challenge California’s conferral of a marriage license to a same-sex couple.

Although a DIG is, then, a real possibility, if I had to guess I’d say that the remaining two results are more likely – namely, dismissal on standing grounds or an “eight-state” ruling on the merits.

No appellate standing

At least five Justices at argument – the Chief Justice and Justices Ginsburg, Breyer, Sotomayor and Kagan – expressed evident sympathy with the Article III standing argument set forth in Walter Dellinger’s amicus brief.  (Disclosure:  I consulted on that brief, in which the counsel of record is my Georgetown colleague Irv Gornstein.)

Other Justices, including Justice Kennedy, expressed concern that if the Court were to hold that the Proposition 8 proponents lack Article III standing because they are not agents of the state of California (in the sense that they are not fiduciaries of the state and are not politically accountable for their litigation decisions – see the Dellinger brief), such a ruling might invite executive officials in California to effectively “thwart the initiative process” (Justice Kennedy’s words), simply by refusing to appeal lower court rulings declaring that such initiatives are invalid.  As Justice Breyer noted, however, the Dellinger brief describes several ways in which California law could be amended to prevent that scenario, including by providing for an independent counsel who would be required to act as a fiduciary of the state with the responsibility of defending initiatives when the Attorney General declines to do so.  Whether those or other possible state-law options assuage the Justices’ evident concerns about California’s ability to secure Supreme Court review of lower court decisions declaring California initiative measures invalid will likely determine how many Justices are prepared to dismiss Perry on standing grounds.  (If the controlling opinion of the Court were to be that the Proposition 8 opponents do not have Article III standing to appeal, then the district court judgment would remain in place.  In an earlier post, I discussed the possible practical implications of that result.)

Before moving on to discuss the prospect of an eight-state merits holding, it’s worth noting one other distinct point on standing:  Justice Kennedy agreed at oral argument that there is “a substantial question on standing.”  He wondered, however, whether California’s assignment to the initiative proponents of the authority to represent the state’s interest in enforcement of Proposition 8 is distinguishable from the Chief Justice’s hypothetical of a state law assigning such litigation authority to any and all of its citizens:  Justice Kennedy reasoned that, unlike California citizens at large, who might have countless different views about how best to represent the state’s interests, “these five proponents were required at all times to act in unison, . . . so in that sense it’s different from simply saying ‘any citizen.’”

I’m not sure that’s correct, however.  As far as I know, California law does not, in fact, require initiative proponents to act “in unison,” at least not when they are purporting to represent California’s interests in federal court.  This explains why, in fact, one of those five proponents, William Tam, declined to join the other four in bringing the appeal.  Imagine that Tam instead had filed his own appeal and petition, making arguments at odds with those pressed by his co-proponents.  What then?  As the Dellinger brief notes, one ramification of the court of appeals’ holding on standing is that “a federal court would have no way to know what to do when proponents disagree among themselves on such matters as whether to appeal, whether to settle the case, whether to stipulate to facts, and what arguments should be made.”

An “eight-state” merits ruling

In my earlier post I wrote the following:

The Court could hold, as the United States argues, that once a state has done what California did here  – namely, provide by law that same-sex “domestic partners” will have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law * * * as are granted to and imposed upon spouses” – and that seven other states (Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) likewise have done, there is no legitimate justification for denying those couples the status of “marriage” itself, and that therefore it is fair to conclude that such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids.

Most observers of Tuesday’s argument have concluded that such an “eight-state” ruling is very unlikely, because several Justices expressed serious reservations.  And perhaps that’s right.  But I’ll go out on a bit of a limb here:  I’m not so sure this option isn’t very much in play.

To be sure, Justice Kennedy stated that it would be “very odd” for California to in effect be “penalized” for being “more open to protecting same-sex couples than almost any State in the Union.”  To like effect, Justice Sotomayor said that there would be an “irony” if “States that do more [for same-sex couples] have less rights.”  That is a common reaction to the eight-state argument – that it is in effect a “no good deed goes unpunished” argument.

But that objection doesn’t quite capture the fundamental nature of the eight-state argument—namely, that it’s an underinclusiveness argument of the sort the Court often invokes to explain why a state’s defense of a law is inadequate.  As both Ted Olson and the Solicitor General carefully explained, the argument is not that a state such as California, which grants civil unions with all of the incidents of marriage, is “penalized,” or has fewer constitutional prerogatives than a state that is less generous.  The argument is, instead, merely that the conferral of full civil union or domestic partnership rights and responsibilities precludes California and the other seven such states from invoking certain justifications as a ground for discriminating against same-sex couples when it comes to marriage licenses.

Most pointedly, let’s look at the one rationale the Justices appeared to view as a possible rational basis for a state to decline to recognize same-sex marriages – the possibility that children will be worse off if adopted by same-sex parents.  There is now a great deal of evidence that undermines this once-common notion; but Justice Kennedy stressed that “that sociological information is new.”  And thus he could be of the view that it might be permissible for a state to wait until more of the results are in on that question before allowing same-sex couples to marry (at least on Justice Scalia’s assumption that states must allow married couples to adopt children).

But as the Solicitor General explained, “California’s own laws . . . cut the legs out from” this possible justification, because “California has been anything but cautious” when it comes to such adoption rules:  It has afforded same-sex couples “equal parenting rights, equal adoption rights.”  Justice Ginsburg made a similar point in response to Justice Scalia, as did Ted Olson in response to Justice Alito’s doubts about an eight-state theory:  “Those arguments [about child-rearing in particular] can’t be made on behalf of California, because California has already made a decision that gay and lesbian individuals are perfectly suitable as parents; they’re perfectly suitable to adopt; they’re raising 37,000 children in California.”

As Justice Scalia explained in the context of the Free Speech Clause in Brown v. Entertainment Merchants Association, when a regulation “is wildly underinclusive when judged against its asserted justification,” it “raises serious doubts about whether the government is in fact pursuing the interest it invokes.”    Yes, this means that if State A has been more speech protective than State B, State A might have more difficulty justifying a speech restriction that both states impose.  And perhaps there is an irony in that.  But that is only because State A has already in effect abandoned a justification that might still be available to State B.  See also Citizens United v. FEC (Government could not defend limits on corporate independent expenditures based upon its interest in protecting dissenting shareholders from being compelled to fund corporate political speech when it banned corporate speech “in only certain media within 30 or 60 days before an election,” whereas “[a] dissenting shareholder’s interests would be implicated by speech in any media at any time”).

The same is true, for example, in Free Exercise law:  As Justice Kennedy explained for the Court in Church of Lukumi Babalu Aye v. City of Hialeah, a state cannot prohibit ritual sacrifice for religious purposes on the ground that it causes certain harms when the state itself is willing to live with analogous harms to the same state interests by allowing to kill animals for many other reasons.   Another state that is generally less protective of the liberty of individuals to kill animals, however, might be able to impose that same restriction on religious ritual sacrifice.  In its amicus brief in Perry, in the context of the “protection of children” rationale in particular, the United States cites several other contexts in which the Court has relied upon analogous underinclusiveness rationales.

This does not mean that the thirty-three states that don’t go as far as California in extending rights to same-sex couples will be able to justify denial of marriage – far from it.  As the Solicitor General explained, especially if the Court were to insist upon heightened scrutiny, “I don’t want to kid about this – we understand that would be a very heavy burden for a State to meet.”  Nevertheless, Oklahoma or Louisiana, for example, would be permitted to try to develop a “different case with a different record” on the question of the “caution rationale” respecting the effect on children – a record that California is estopped from relying upon, since it has already rejected that very rationale.

Although Justice Kennedy undoubtedly thought it “odd” that California should be denied a justification that might be available to states that have been less solicitous of the rights of same-sex couples, in fact the “eight-state” holding would comport with the dueling concerns that he expressed about children at oral argument:  On the one hand, the sociological information on the effects on children is relatively recent, something that obviously gave Justice Kennedy pause when Ted Olson asked him to issue a broad “fundamental right to marry” holding that would affect all fifty states immediately, requiring them and the Court to “go into uncharted waters.”  That could be “wonderful destination”; but it might also be “a cliff,” said Justice Kennedy.  “On the other hand,” he explained, denying the “full recognition and full status” of marriage to same-sex couples in California results in “an immediate . . . injury” to the “some 40,000 children in California” who already live with same-sex parents by virtue of California law, which has determined that such an arrangement does not injure such children.  California, that is to say, has already determined for itself that families with same-sex couples are a “wonderful destination,” not a “cliff.”

The eight-state solution is carefully calibrated to account for both of Justice Kennedy’s concerns – which is why I think there remains a  good chance that the controlling opinion of the Court might rely upon such a rationale, even if a “no standing” holding remains somewhat more likely.

Posted in Hollingsworth v. Perry, U.S. v. Windsor, Everything Else, Featured

Recommended Citation: Marty Lederman, Revisiting the Court’s several options in the California marriage case, SCOTUSblog (Mar. 29, 2013, 4:54 PM), http://www.scotusblog.com/2013/03/revisiting-the-courts-several-options-in-the-california-marriage-case/