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Commentary: What might happen?

Erwin Chemerinsky, Dean of University of California Irvine Law School, submitted an amicus brief in support of the plaintiff-respondents in this case.

Oral arguments in high-profile cases rarely provide a clear sense of what the Court is likely to do.   Last year, after oral arguments, the conventional wisdom was that the Court was going to strike down the individual mandate in the Affordable Care Act and uphold Arizona’s restrictive immigration law, S.B. 1070.   Those predictions were totally wrong and completely forgotten after the decisions.

But still it is impossible to not think about what might happen in Hollingsworth v. Perry and United States v. Windsor.   There are two questions:  First, will the Court dismiss one or both cases without reaching the issue of whether gays and lesbians have a constitutional right to marriage equality?   Second, if the Court reaches the merits what might it do?

Will the cases be dismissed and if so, then what?

In the oral arguments on Proposition 8, some Justices, including Justice Kennedy, raised the possibility of dismissing the case entirely.   Many of the Justices raised serious questions about whether the supporters of an initiative have standing to defend it if the defendants, the governor and attorney general, won’t do so.   In the arguments about Section 3 of the Defense of Marriage Act, serious questions were raised as to whether the House of Representatives, through its leadership group, could defend a federal law when the executive branch refuses to do so.

It is quite possible that one or both of these cases could be dismissed.  What then?   It is far clearer for Proposition 8 than for DOMA.   If the Court in Hollingsworth v. Perry simply dismisses certiorari as being improvidently granted, the Ninth Circuit decision declaring Proposition 8 unconstitutional will stand and gays and lesbians will have the right to marry in California.

It is also possible that instead the Court will decide that the supporters of an initiative do indeed lack standing to appeal to defend it when the defendants refuse to do so.  Such a ruling would leave untouched the federal district court’s decision and order. There never was doubt that the same-sex couples who desired marriage licenses had standing to challenge Proposition 8.  The question of standing arose only on appeal.  If the Supreme Court holds that the supporters of the initiative lacked standing to appeal, then the Ninth Circuit’s decision will be vacated and the district court decision stands.

The result would be that Proposition 8 could not be applied anywhere in California because the injunction issued by Judge Vaughn Walker applies to and binds the state officials – the governor, the attorney general, and the state’s Registrar of Vital Statistics – who have the sole and exclusive authority to determine who is eligible to marry in the state.  In fact, the California Supreme Court has made clear, in Lockyer v. City & County of San Francisco, that “marriage is a matter of ‘statewide concern’ rather than a ‘municipal affair.’”  , The district court’s injunction commands the governor, the attorney general, the registrar, and “all persons under the control or supervision of defendants” to cease application or enforcement of Proposition 8.

In fact, the Perry plaintiffs sought – and obtained – a declaratory judgment that Proposition 8 is unconstitutional on its face.   Decisions invalidating a law on its face routinely establish that the law in question cannot be applied against any person, even where the case was not certified as a class action.

If the Court dismisses Windsor on standing grounds, it is harder to know exactly what that will mean.  Ms. Windsor will prevail and not have to pay the estate tax owed after her spouse’s death.   But this would not strike down Section 3 of the Defense of Marriage Act.   All other same-sex married couples seeking benefits under federal law would need to bring an action.   President Obama, however, could cure this by changing his policy that the federal government will enforce, but not defend, DOMA.  He could, and should, issue an executive order that DOMA is unconstitutional and the executive branch may not and will not enforce it.

What if the Court reaches the merits?

If the Court reaches the merits, I think it is clear that there are five votes to strike down Proposition 8 and Section 3 of DOMA.   What was most striking to me was how very weak the arguments are for denying gays and lesbians of the right to marry.   The central argument advanced by Chuck Cooper, defending Proposition 8, is that marriage is primarily about procreation.   But Justice Kagan pointed out that heterosexual couples always have been able to marry without needing to show the ability or desire to have children.   Gay and lesbian couples will have children – by adoption, artificial insemination, and surrogacy – whether or not they can marry.  Justice Kennedy made the point powerfully:  there are 40,000 children of same-sex couples in California.  Shouldn’t their parents be able to marry?   There is no logical link between marriage being about procreation and that being a reason to deny the right to marry to same-sex couples.

Mr. Cooper was asked and could not explain how any heterosexual marriage is hurt by allowing same-sex marriage.   Nor was any other credible basis offered for denying marriage equality to gays and lesbians.

I would hope, but am not optimistic, that the Court would hold that laws prohibiting marriage equality inherently deny equal protection and violate the right to marry for gays and lesbians.  I believe the Supreme Court should seize this opportunity to rule that marriage is a fundamental right of all citizens and that states cannot exclude gay and lesbian Americans from what it described in Zablocki v. Redhail as this “most important relation in life.”  The Supreme Court’s existing equal protection jurisprudence, and its prior decisions about the rights of gay and lesbian Americans, point inexorably to that conclusion.  One need look no further than Justice Kennedy’s statement for the Court in Lawrence v. Texas (2003) that “our laws and tradition afford constitutional protection to personal decisions relating to marriage . . . [and] family relationships.”    “Persons in a homosexual relationship,” Justice Kennedy emphasized, “may seek autonomy for these purposes, just as heterosexual persons do.”  The Court’s precedent makes clear that gay and lesbian Americans in loving, committed relationships are entitled to the same rights, dignity, and respect as their counterparts in heterosexual relationships.

Instead, more likely, the Court will try to issue narrower rulings.   But that will be a challenge. In the Proposition 8 case, the Court could try to invalidate the initiative in a way that just affects California.  That is what the Ninth Circuit did, but none of the Justices expressed support for the reasoning of that court, which held that it violated equal protection for a state to extend and then retract the right to marry to same-sex couples.   If a state creates a right that is not constitutionally required, why can’t it be withdrawn?   Conversely, if there is a right to marriage equality for gays and lesbians, why wouldn’t it exist everywhere in the country?

At the argument on Section 3 of DOMA, Justice Kennedy expressed great doubts about the constitutionality of this provision based on federalism concerns.   He emphasized that marriage is something traditionally regulated by the states.   This seems to be an argument based on the Tenth Amendment and the idea that that provision reserves to the states exclusive control over certain matters.

But not once since 1937 has the Supreme Court endorsed that view.   Since 1937, the Court only has found Tenth Amendment violations where Congress has commandeered states and forced them to enact laws or adopt regulations.   DOMA does not do that.  For the Court to hold that the Tenth Amendment leaves some matters, like marriage, exclusively to the states would be a radical change in constitutional law.

In the end, the oral arguments seemed to confirm what everyone thought in advance:   Justices Ginsburg, Breyer, Sotomayor, and Kagan are willing to find a right to marriage equality.   Justice Kennedy likely will join them in striking down Proposition 8 and Section 3 of DOMA, if the Court reaches those issues.  But how he’ll write the opinion is impossible to know at this point.


The silliest question in two days of arguments came from Justice Scalia, when he asked Ted Ols0n when laws prohibiting marriage equality became unconstitutional?  The same could be asked as to when laws prohibiting interracial marriage became unconstitutional?  When did laws requiring segregation of the races in public schools become unconstitutional?  When did laws preventing women from being laws become unconstitutional?

The issue in every constitutional case is whether when the case is before the Court the government action is unconstitutional.  Perhaps the most literal answer to Justice Scalia is that laws prohibiting marriage equality will become unconstitutional when the Court issues its rulings saying so.  And that hopefully will be very soon.

Recommended Citation: Erwin Chemerinsky, Commentary: What might happen?, SCOTUSblog (Mar. 28, 2013, 6:40 PM),