Analysis: 2 rulings on gay marriage: no federal issues
Two decisions by state supreme courts on Thursday set back the legal campaign to win the right to marry for same-sex couples. But neither of the rulings appears to have been based on federal law, so there appears to be nothing in them that the Supreme Court would be likely to review.
Both rulings — a sweeping rejection of gay marriage in New York State, and a narrower decision to uphold a gay marriage ban in Georgia — were based entirely on state law grounds. Unless such foundations themselves pose federal constitutional issues, they are immune to second-guessing by the Supreme Court.
The New York Court of Appeals (that state’s highest court) issued a split, 4-2 ruling (one judge did not participate) in four consolidated cases on Thursday, in a much-anticipated development with symbolic and legal importance to both sides in the courthouse wars over same-sex marriage. (The lead case was Hernandez v. Robles, docket 86; the text of the plurality, concurring and dissenting opinions can be found here.)
In their appeals, lawyers for the same-sex couples seeking the right to marry raised three issues, and all three were confined to the New York state Constitution.
Both the plurality and concurring opinions, if read somewhat casually, appear to be declarations on questions under the U.S. Constitution’s due process and equal protection clauses (in the Fourteenth Amendment). But the language borrowed from a string of Supreme Court rulings, and extrapolations from that language, are used entirely to express the views of the state court in interpreting due process and equal protection guarantees under the New York state Constitution. For example, Judge Robert S. Smith’s plurality opinion, supported by two other judges, begins with this declaration: “We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.” Everything after that seeks to explain that holding.
There is one small hint of a federal question in Judge Smith’s opinion. Judge Smith writes, without elaboration: “…we reject defendants’ argument that the Supreme Court’s ruling without opinion in Baker v. Nelson (409 US 810 [1972]) bars us from considering plaintiffs’ equal protection claims.” The Baker ruling is a summary decision of the Supreme Court, dismissing “for want of a substantial federal question” a Minnesota Supreme Court decision upholding against a federal constitutional challenge a state law limiting marriage to opposite-sex couples. Foes of gay marriage regularly cite that brief order in their argument that the Supreme Court already has settled any federal constitutional issues in this field.
The concurring opinion of Judge Victoria A. Graffeo, supported by one of the judges who joined the Smith plurality, concludes by saying that “the New York Constitution does not compel…a revision of the Domestic Relations Law,” which the state court interprets as limiting marriage to a man and a woman. Everything that precedes that conclusion, while heavy with federal citations, is keyed to the state law ground of her views.
Chief Judge Judith S. Kaye’s dissenting opinion, joined by another judge, seems designed to raise serious federal constitutional issues about the validity of the Domestic Relations Law as the majority interprets it, but even if it does succeed at that, it very likely does not provide a basis for seeking Supreme Court review of Judge Kaye’s colleagues’ judgment.
Moreover, the strategy of many of those involved in the campaign to achieve legal recognition for same-sex marriage is predicated, so far, on pressing the issue in state courts under state law. That explains the decision to limit the New York cases, for example, to state law issues. There may be little interest in trying to get the Supreme Court involved at this stage in cases that may actually be no more than interpretations of state law.
The Georgia decision that emerged shortly after the New York ruling on Thursday was in the case of Perdue v. O’Kelley, et al. (S06A1574); it can be found here. The state court, without dissent, ruled that a state constitutional amendment approved by the voters in 2004 was valid. (The text of that amendment is included on the first page of the opinion.) Its decision was confined to the sole question, under state law, of whether the language of the amendment incorporated more than one issue. The Georgia constiutiton forbids multiple-subject amendments. A trial judge in the state had found that the amendment’s text violated that rule. Reversing, the state Supreme Court said: “The correctness of that [trial court] ruling is the only issue to be decided by this Court in this case.”
Thus, there is not even a hint of a federal question in that particular decision.
Did any party in either case raise a federal question? SCOTUS has jurisdiction to review a federal question properly raised by a party but ignored by a state court. The federal question must be “pressed or passed upon below.” Illinois v. Gates, 462 U. S. 213, 219 (1983) (emphasis added).
If the parties didn’t raise the federal question and the state court didn’t decide it, then the prerequisite for SCOTUS jurisdiction under 28 U.S.C. § 1257(a) is not there.
Comment by Kent Scheidegger — July 6, 2006 @ 6:44 pm
Judith Kaye’s dissent, though, tries to raise the specter of an erroneous interpretation of federal law. The concurrence exists for the sole reason of trashing her dissent. It succeeds. None of her citations, nor the arguments they purport to support, survive the withering analysis of the concurrence. I suspect the concurrence exists to thwart any chance of SCOTUS review.
Comment by Commentator — July 6, 2006 @ 10:08 pm
And I think the argument would be that NY Constitution is equal to on Federal law; the interpretation of Federal law is wrong, as it interprets the Federal constitution more narrowly than it should, not more broadly; therefore, there is no adequate and independent state ground barring SCOTUS review of the erroneous interpretation of federal law.
Comment by Commentator — July 6, 2006 @ 10:11 pm
Lyle notes in a revision to the main post that the plaintiffs did not raise a federal question. There clearly is no jurisdiction. They would be wasting their money to even file a certiorari petition.
Comment by Kent Scheidegger — July 7, 2006 @ 6:25 pm
To address perhaps a separate issue.
NY doctrine follows federal as to equal protection as a matter of state law. Thus, what the Supreme Court determined is required for equal protection of law is what is required for state law. Contra, MA has more liberal equal protection rules pursuant to its own state constitution. NY has somewhat broader due process protections, though the concurrence tried to narrow avenue.
Thus, the concurrence’s discussion of federal equality doctrine is relevant for the state question. Having read it, I don’t think it is just in place to “trash” the dissent, though that might be one reason. The dissent is on all questions, the concurrence started off noting it was particularly concerned with part of them.
The author of the main opinion joined the concurrence, perhaps seeing it as a sort of annex on the points she covered.
Comment by Joe — July 7, 2006 @ 10:05 pm
I have been informed, my bad, that there are two “Smiths” on the Court of Appeals, and that they split — one wrote the plurality, one joined the concurrence.
Comment by Joe — July 9, 2006 @ 11:28 am