To be perfectly honest, I haven’t read or watched most of the commentary around this week’s arguments in Hollingsworth v. Perry (the Prop 8 case) or US v. Windsor (the DOMA case). I find that prognostication based on oral argument is pretty pointless. The Justices, going into this week’s arguments, have read hundreds upon hundreds of pages of briefing materials about the cases. Oral argument, by its very nature, frequently addresses the more obscure issues that haven’t received the bulk of the briefing. And, oral argument at the Supreme Court has become more and more about grandstanding by the Justices (see, e.g., Scalia, Antonin).
That being said, here’s the basic run-down of what you need to know, as we wait three months for the decisions.
1. Standing: The Court could, in theory, refuse to decide either case. Like so many controversial cases, both Perry and Windsor have questions of standing—whether there’s a real “case or controversy” that gives the Court jurisdiction. In Perry, the State of California declined to defend Prop 8, allowing the official proponents of the law to take the defense in the case. The question is whether the proponents of Prop 8, having lost, have the right to appeal the decision. After all, they didn’t lose; it was theoretically the State that lost. Similarly, in Windsor, the Obama administration declined to defend DOMA. The defense has been led instead by the Bipartisan Legal Advisory Group (really, the House Republicans). In both cases, if the Court finds no standing, the plaintiff wins—Prop 8 falls and Edith Windsor gets her tax refund—but the cases have no precedential value.
(In Windsor, things actually get weird if there’s no standing. Since there would be no valid appellate court ruling on DOMA, the law would stand, but Windsor as an individual would nonetheless get her tax refund. Individual plaintiffs would have to keep suing until somebody loses, at which point that losing plaintiff would have standing to appeal.)
2. Level of Scrutiny: Laws that discriminate against a particular group must meet one of the following three tests:
- Strict Scrutiny: The law must be narrowly tailored to serve a compelling government interest.
- Intermediate Scrutiny The law must significantly further an important government interest.
- Rational Basis Review: The law must be rationally related to a legitimate government interest.
Which test is used depends on the characteristic that is being subject to discrimination. “Suspect” characteristics—race, religion, and national origin—get strict scrutiny. Quasi-suspect characteristics—primarily gender—get intermediate scrutiny. Everything else gets rational basis review.
The Supreme Court has never said which category sexual orientation falls into. Based on the factors used by the Court in the past, sexual orientation must be at least quasi-suspect, and probably a suspect class. But the Court has always avoided making a definitive ruling on this question. If the Court finds that the laws fail all three tests, then they can keep avoiding the question. But if the laws are at least rational and legitimate, then they have to make a decision.
3. Equal Protection Analysis: Once the level of scrutiny is determined, the core question is how much “bite” the relevant test has. For example, Judge Walker, in Perry, found that Prop 8 was an irrational means to an illegitimate end, and would thus fail even under rational basis review. If the Court applies either intermediate or strict scrutiny, it will be almost impossible to uphold either law. If it applies rational basis review, the question is really whether Justice Kennedy (or perhaps Chief Justice Roberts) will nonetheless vote to strike them down as irrational.
4. Romer v. Evans: The Ninth Circuit’s ruling in Perry managed to strike down Prop 8 while purporting not to affect laws in any other states. It did this by relying on the 1996 case Romer v. Evans, which struck down a Colorado ballot initiative that made it unconstitutional to enact legal protections for gay individuals. The Court ruled in Romer that the ballot initiative could not have had any basis other than irrational prejudice, and it therefore was unconstitutional. Similarly, the Ninth Circuit held in Perry that “Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” Taking away “marriage” while leaving in place all of the rights of civil unions could not have been motivated by nothing other than irrational prejudice.
However, the Ninth Circuit’s ruling proves too much. If there can be no rational reason to take away “marriage” from same-sex couples while leaving civil unions in place, how can there be any rational reason to give same-sex couples all of the rights of marriage except the name? Even if there were valid, legitimate reasons to restrict marriage rights to heterosexual couples, once you give those rights to same-sex couples, you have admitted that there’s no reason not to give them the title “marriage” as well. This leads us to…
4. The “Eight-State Solution”: The United States has actually argued for an interesting middle-ground resolution in Perry, which commentators are calling the “eight-state solution.” Even if sexual orientation is not a suspect class, and even if discriminating against same-sex couples can be rationally defended, then it is nonetheless irrational to give them all the rights of married couples and not the title “marriage.” It’s pretty much the definition of “separate but equal.” Accordingly, the eight states that have full civil union laws—California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—could not ban same-sex marriage. None of the Justices appeared to bite down too hard on this argument at oral argument, but it remains the most plausible way to strike down Prop 8 while not affecting the laws of the 32 states than same-sex marriage.
5. States’ Rights: One of the weird arguments to pop up this week was whether definition of marriage is, in effect, a state right. Justice Kennedy in particular seemed to be arguing that states alone have always had the power to define, grant, and dissolve marriage. Thus, Californians can legitimately restrict the institution to male-female couples (i.e. Prop 8 stands), but the Federal Government must accept whatever definitions the states use (i.e. DOMA falls). If your state considers you “married,” you should be able to file a joint federal tax return.
Normally, I would consider this to be a highly unlikely scenario. The Supreme Court rejected once and for all the idea that states have any “traditional” functions immune from federal intrusion almost 30 years ago. (Yes, it was that recent.) I would be shocked if they walked back on that jurisprudence now. But, we are living in strange times. In June, the Supreme Court stated that the ACA’s individual mandate was not a valid exercise of Congress’s commerce power, and it held that the ACA’s Medicaid expansion was unduly coercive on the states. Neither of these positions was supported by any rational reading of the existing case law. But, one of the perks of being on the Supreme Court is that you can do pretty much whatever you want.
So, we’ll find out in June.
The Four-Eyed Raven 