The relationship between DOMA and Proposition 8
on Mar 27, 2013 at 3:29 pm
Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases. The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation. The challenge to Proposition 8 is a direct challenge to just such a decision by a state.
Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.
A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.” That role, the Court will rule, is historically reserved to the states. So DOMA is a federalism case.
Some thought that Justice Kennedy would want to carry forward the project of Romer and Lawrence and be remembered eternally as the hero of gay rights. But they appear not to have fully grasped the concerns of a mainstream conservative Justice with taking so fundamental a step as finding a constitutional obligation to redefine so basic a social institution based on social science that to some appears quite new.
But if DOMA is going to be decided as a federalism case, Hollingsworth becomes a much harder case for the plaintiffs. That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.
In fact, there is a realistic chance that the Court’s most conservative Justices understood that dynamic from the beginning and for that reason voted to grant certiorari in Hollinsgworth. In effect, they would put the Court in the box fully grappling with the implications of a ruling invalidating DOMA. To then also invalidate Proposition 8, the Court would have to go quite far in applying heightened scrutiny and invalidating the traditional definition of marriage, notwithstanding its professed concerns for states’ rights.
So the project for Justice Kennedy and the Court’s left seemingly is how to escape the dilemma that Hollingsworth is before them for decision. It is hard to “disappear” a granted case. The more liberal Justices presumably represent four votes to invalidate at least Proposition 8 on equal protection grounds. But four votes get you nothing at the Supreme Court, and Justice Kennedy expressed deep concern at making such a significant ruling at this time. All likely realize that history is on the side of gay-rights advocates, but they disagree significantly on whether that is the same thing as a constitutional mandate, at least at this time.
I suggested one way out of the Hollingsworth box yesterday – remand the case for further consideration in light of the ruling in Windsor. Much would depend on what the Court said in invalidating DOMA. Another option is to hold that the Hollingsworth petitioners lack standing to appeal. It will be fascinating to see what they do.