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More tea leaves: Why DOMA’s demise will support Prop 8 surprise

This blog is pleased to have reactions to the oral arguments in Hollingsworth v. Perry and United States v. Windsor from guest contributors with a range of perspectives. This post has reactions from Michigan Solicitor General John J. Bursch. Solicitor General Bursch authored an amicus brief on behalf of Michigan in support of Dennis Hollingsworth et al.

In my previous post, I explained why the tea leaves suggest that the Supreme Court will issue a merits decision that upholds Proposition 8.  This post predicts that the Supreme Court will also reach the merits in United States v. Windsor and strike down the Defense of Marriage Act, but that in doing so, the Court will buttress its decision upholding Proposition 8.  As in the previous post, we can consider potential outcomes on a probability spectrum. 

 Highly probable:  The Court will reach the merits in Windsor

There has been ample commentary about how thoroughly the Justices grilled all counsel in Windsor about the case’s justiciability.  The number and intensity of questions have been oft interpreted to signal that the Court will not reach the merits.  But that’s not what the tea leaves say:

  • As Justice Scalia noted, there was clearly federal jurisdiction at the trial level when Windsor filed her complaint.  The problem is that the executive branch chose not to defend DOMA’s constitutionality.  It seems peculiar that the executive could insulate a lower court’s ruling striking down a congressionally enacted statute from Supreme Court review by refusing to defend.  Someone must be able to vindicate the constitutionality of the challenged law.
  • In this case, that someone is the U.S. House of Representatives, which stepped into the breach and has defended on the merits.  In response to numerous questions from Chief Justice Roberts and Justices Kennedy and Kagan, counsel for the House was successful in drawing a practical line explaining when Congress may (and may not) take such action.
  • When Justice Kennedy asked amicus counsel to give the Court a “pigeonhole” – i.e., a doctrine on which it could base a non-justiciability ruling, counsel was unable to provide a persuasive answer.  Counsel tried standing, but Justice Kennedy and Justice Kagan both immediately shot down that idea.  Justice Breyer then piled on, too.
  • Chief Justice Roberts tried to pin the government with the fact that the Court has never before reviewed a case where all the parties agreed with the decision below.  But as the government’s counsel explained, it also unprecedented for an administration to refuse to defend a law’s constitutionality yet continue to enforce the law, a decision that the Chief Justice and Justices Scalia and Kennedy sharply criticized.
  • By the time the House’s counsel reached the three-quarters mark of his argument, the Justices were running out of questions.  Counsel highlighted the inherent conflict of interest if the House were not allowed to press this litigation, a scenario where the executive branch is “making litigation decisions to promote the defense of a statute they want to see invalidated.”
  • In fact, the only comment over the last several minutes of the jurisdiction argument came from Justice Kennedy, who agreed  that it “would give you intellectual whiplash” to accept a world where the federal government would “file a motion to dismiss . . . asking the district court not to dismiss the case.”

In sum, it appears highly probable that the Supreme Court will reach the constitutionality of DOMA Section 3.

More probable than not:  Justice Kennedy is the fifth vote for striking down DOMA Section 3

Coming into the argument, it has been widely assumed that Justices Ginsburg, Breyer, Kagan, and Sotomayor would be prepared to invalidate Section 3 of DOMA.  Questioning at argument did little to dispel that assumption.  As with the Proposition 8 dispute, the law’s fate hinges on Justice Kennedy.  And Justice Kennedy consistently expressed the view that the definition of marriage is a matter of state law, not something for the federal government to decide:

  • “[W]hen [the federal government] has 1,100 laws, which in our society means that the Federal Government is intertwined with the citizens’ day-to-day life, you are at – at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • “[The House’s legal theory] is not consistent with the historic commitment of marriage and – and of questions of – of the rights of children to the State[s].”
  • “I think it is a DOMA problem.  The question is whether or not the Federal government, under our federalism scheme, has the authority to regulate marriage.”
  • “You think Congress can use its powers to supercede the traditional authority and prerogative of the States to regulate marriage in all respects?  Congress could have a uniform definition of marriage that includes age, consanguinity, etc., etc.?  . . .  “[T]here is a federalism interest at stake here . . . .”
  • “What is the Federal interest in enacting this statute and is it a valid Federal interest . . . ?”

Conversely, Justice Kennedy had very little to say in support of DOMA Section 3.  The tea leaves suggest strongly that a Court majority will strike down Section 3 (though possibly on multiple grounds, as Justices Ginsburg, Breyer, Kagan, and Sotomayor may rest their votes on equal-protection principles).

More probable than not:  Justice Kennedy uses his DOMA opinion to buttress his Proposition 8 opinion.

Justice Kennedy’s comments about state power to regulate marriage – calling it “the essence of the State police power” – provide further evidence that he intends to uphold Proposition 8.  Acting as the swing vote in both cases, Justice Kennedy seems likely to leave it to the People and their elected representatives to decide what “marriage” means.  Given recent trends in the polls, this may be of small comfort to supporters of traditional marriage.  But such a pair of decisions would not constitutionalize same-sex marriage, which would also be disappointing to same-sex-marriage advocates.

Then again, these are only tea leaves.

Recommended Citation: John Bursch, More tea leaves: Why DOMA’s demise will support Prop 8 surprise, SCOTUSblog (Mar. 29, 2013, 11:09 AM),