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Nan Hunter

Nan Hunter

Sexuality and gender: What’s law got to do with it?

Equality Under Law—Now You See It, Now You Don't


Sarah Beth Alcabes (L) kisses girlfriend Meghan Cleary, both of California, after the US Supreme Court’s ruling on cases against the federal Defense of Marriage Act (DOMA) and California’s gay marriage ban known as Prop 8, outside the Court in Washington, June 26, 2013. (REUTERS/Jonathan Ernst)

It was the best of weeks and the worst of weeks at the Supreme Court. Today the Court struck down a law that erased the marriages of same-sex couples from the benefits and burdens of all federal programs, and pulled the plug on efforts to keep a ban on gay marriages alive in California. These two decisions—especially the one on the so-called Defense of Marriage Act—took the Court to a new high in establishing formal equality under law regardless of sexual orientation. On Monday and Tuesday, however, the Court battered affirmative action, eviscerated the Voting Rights Act and added new obstacles to individuals who file anti-discrimination claims under Title VII.

Is this some new game of equality whiplash? Not really. For eight Justices, their views are consistent across the board. For the four most conservative Justices, the government is best that equalizes least. In fact, they see any affirmative attempt to dismantle hierarchy as presumptively unconstitutional and, even if adopted by a recent legislative majority, it will be tossed out as reflecting the attitudes of civil rights old-fogeyism. For the four progressive Justices, the current retrogression is horrifying. And then there’s that man in the middle.

Justice Kennedy must be deeply ambivalent about the meaning of equality. He blinked at the complete elimination of affirmative action programs in universities, stopping just short of that in his opinion for the Court in Fisher v. University of Texas. He joined the other conservatives in the Voting Rights Act and Title VII cases. And then he wrote the opinion in the DOMA case, one larded with aspiration and inspiration but short on doctrinal clarity. Equality has become such a shadowy presence in equal protection cases that Kennedy’s opinion insists that the material and dignitarian harms imposed by DOMA on a stigmatized minority probably should be traced to another portion of constitutional text. I’m sure that the five Justices who signed that opinion wrestled over how to word the sentences articulating this sort of new approach, but the result only proves the old adage about the perils of writing by committee.

What does all this mean?

For LGBT rights lawyers, who have worked for decades to follow in the footsteps of the civil rights movement and achieve formal equality, the day is bright. Formal equality looks damn good when you haven’t had it. True, we don’t know exactly whether formal equality for gays and lesbians will have the same doctrinal sheen that it has had for other minorities. It will be a while before we learn exactly how the Court is going to interpret the “equal liberty” doctrinal hybrid. Melding liberty and equality principles is not new. It has been a minor chord in earlier cases, but seemingly made its official debut in Windsor, the DOMA case. How far it’s going to migrate is anyone’s guess.

This is the third gay rights case in which, when one would have expected the Court to announce the level of stringency appropriate when courts review laws that classify based on sexual orientation, the Court has ducked. It seems quite likely that there are four votes for explicitly invoking the kind of heightened scrutiny applied to sex or race discrimination, so one has to assume that Justice Kennedy is not willing to go there. And since he has written all three of the feints (Romer v. Evans and Lawrence v. Texas before today), I would bet that he has decided to keep the gay rights legacy for himself, all the while using only a rational basis measure as a way to resist placing this form of discrimination on the same level with others.

Justice Kennedy’s jurisprudential hesitancy did nothing to mollify Justice Scalia, however. In what amounted to an off-the-charts level of invective for a Supreme Court Justice, Scalia berated the majority for a decision that was “rootless,” “shifting” and “high-handed,” motivated by a libeling of people like him as “enemies of the human race,” and characterized by “nonspecific hand-waving,” “real cheek,” “scattershot rationales [and] federalism noises” and—my favorite—“legalistic argle-bargle.” Although the majority opinion declares repeatedly its consistency with the traditional power of the states to regulate marriage, Scalia virtually screams that the logic of those arguments will eventually lead to invalidation of all restrictive state marriage laws. And he is, of course, right about that.

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The legal debate over gay marriage has become kabuki, and the Scalias of the world are the losers in this drama. Another case calling the question for every state’s law will arrive at the Supreme Court soon. Today, in other words, is not the ultimate statement on whether marriage equality is constitutionally required, but no one doubts how this will end, if not in the next case, then in the one after that.

By contrast, for those fighting for a deeper meaning of equality, especially for the most subordinated minorities, the week is anything but bright. Formal equality looks pretty thin if that’s all you have.

Even though the myth that only rich white guys are gay has been repeatedly disproved by Williams Institute data, some part of the LGBT movement will almost certainly peel off when marriage equality finally becomes a fifty-state reality. Those demographic studies are true, however, and that means that most of us will still have a bundle of problems that formal equality won’t fix. Ever.

As the Supreme Court voted, huge crowds gathered outside the Court building in DC, anxiously awaiting the results.

Why Today's Argument Could Decide the Gay Marriage Debate


Supporters of marriage equality rally outside the Supreme Court as it considered Hollingsworth v. Perry, a challenge to California’s Proposition 8. (AP Photo/Paul Morigi.)

Friday at 10 am is the traditional conferencing time for the justices of the Supreme Court, and they are gathering this morning to preliminarily decide the outcomes of the cases in which they heard argument this week. These early outcomes can change; the result in Bowers v. Hardwick famously flipped from good to bad when Justice Lewis Powell reconsidered his vote over the weekend and changed sides. But the bottom line results in both the Prop 8 and DOMA cases may have been determined by the time you read this.

No decisions are announced, of course, until the opinions have been finalized, a lengthy process during which Justices continue to refine or even reverse their views. And it looks quite likely that there will be multiple opinions in these cases. There might be a shortcut, though, and it would imho be a happy one: The Prop 8 case could drop off the Justices’ workload very quickly, in a way that would leave in place the appeals court ruling that it is unconstitutional.

During oral argument in Hollingsworth v. Perry, Justice Kennedy wondered aloud whether the writ of certiorari should be dismissed as improvidently granted, an option that the Court occasionally utilizes when, after briefing and argument, it concludes that for some reason the particular case or question presented is not ready for prime time. A dismissal as improvidently granted (DIG) would mean that the Justices would not have to decide even the threshold standing issues in Perry, much less the constitutionality of any state laws. After Justice Kennedy’s comment, Justice Sotomayor seemed to buttress this possibility by expressing her own hesitation to force a decision on the constitutionality of marriage bans, especially for states other than California.

The backdrop for this is that it is now blazingly obvious that only the conservative Justices wanted to hear the case. That should come as no surprise, since they probably felt (and feel) reasonably confident that Justice Kennedy is not going to rule in 2013 that forty or so state marriage laws are unconstitutional, as the Perry lawyers have sought. A resounding defeat for gay marriage supporters in Perry is about the only thing that could slow down what seems like truly extraordinary momentum in public opinion, even if less so in state law, toward allowing gay couples to marry. Ultimately that bucket of cold water would be unlikely to affect more than speed, and might just make the Court itself seem out of tune with American culture. But it would not be a happy moment, to put it mildly.

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So, why wouldn’t the four liberal Justices leap at the opportunity to join Kennedy and DIG Perry, leaving the much better vehicle United States v. Windsor to command center stage in the marriage at the Supreme Court marathon? Strong customs of mutual respect, including self-restraint, are important to the functioning and legitimacy of the Court. (If you want to see what governance looks like without them, check out Congress.) One such custom is that, because a vote of four Justices suffices to grant cert, the Court will normally follow through and decide a case after it is briefed and argued, even if five Justices opposed cert. In other words, if a simple majority of Justices routinely joined to DIG a case that they didn’t want to consider in the first place, the “rule of four” for granting cert would be effectively nullified.

Nonetheless, there are reasons to hope that the Justices could be deciding this morning to DIG Perry. First, as Justice Stevens noted almost forty years ago (ironically, in a sodomy case), the custom of deference to the “rule of four” should not absolutely bar the Court from later deciding by a 5-4 vote to DIG, so long as the majority has concluded in good faith that it is unwise to proceed further in a particular case and DIGing does not become a tactical weapon in the political debates within the Court. (New York v. Uplinger, 467 U.S. 246, 251 (1984).) Second, we don’t actually know whether Justice Kennedy voted to grant cert or not. If he did, then the unwritten rule that a DIG should not happen unless a Justice who initially wanted to consider the case has changed his or her mind would be satisfied.

Bottom line: I think that there is at best a 50-50 chance, probably less, that all the necessary stars will align to give the Court a way out of deciding what I have always believed to be an ill-considered case. It is not impossible, however. And if this is the outcome in Perry, it could be announced as soon as Monday morning. (Yes, Easter Monday.) The biggest problem with that scenario: It wouldn’t give Justice Scalia enough time to write a scathingly sarcastic dissent.

Still, cross your fingers.

Although it may punt on Perry, the Supreme Court seems ready to rule soon on the constitutionality of a federal ban on same-sex marriage.

In Oral Argument, Justices Seem Ready to Rule on the Constitutionality of DOMA


Plaintiff Edith Windsor greets the crowd outside the US Supreme Court after arguments against the Defense of Marriage Act. Pamela Karlan, a member of the litigation team, is to her left. (Reuters/Jonathan Ernst)

“Do you think they will punt on this one too?” That was the first thing I heard this morning in the Supreme Court pressroom. And though one can never be sure of anything after an oral argument, it looks to me like there will be no jurisdictional punt on the DOMA case. Unlike the Prop 8 case argued yesterday, United States v. Windsor seems headed for a ruling on the merits. If so, there will be a definitive decision by roughly the end of June on the constitutionality of the federal law barring recognition of same-sex marriages that are valid under state law.

And since, as we all know, the decision will ultimately rest with Justice Kennedy, the most important signals coming from the Court this morning were his comments, which suggested that he had too many misgivings to allow DOMA to survive. In response to the argument that DOMA helps states by not favoring same-sex marriage, Kennedy noted that Congress “is helping states [only] if they do what we [Congress] want them to do,” which, he noted, is not consistent with state law dominance on the rights of children as well as of spouses. (Justice Kennedy appeared quite troubled by the possibility that Congress has any authority to define marriage, traditionally a state function. He may be the only Justice, however, to question whether Congress lacks the power to define marriage solely for the purpose of federal benefits and other uniquely federal concerns.)

The four progressive Justices showed no hesitation in attacking the arguments offered for DOMA. “What kind of marriage is this?” Justice Ginsburg asked the lawyer defending DOMA when he asserted that DOMA permits some states to allow gay marriage. Justice Ginsburg later described DOMA as a law that creates “skim milk marriages.” Justice Kagan politely ridiculed the claim that Congress’s goals for passing DOMA were neutral, citing legislative history embracing the effort to legislate moral disapproval of gay couples. And the general thrust of Justice Sotomayor’s questions left no real doubt about her leanings.

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Nor did there seem to be any doubt about the conservative Justices, including the Chief Justice, all of whose questions indicated support for DOMA. A number of observers had thought before the argument that Roberts might be movable because, in enacting DOMA, Congress deviated from a long-standing policy of accepting whatever definition of marriage had been adopted by the state where a particular couple resides. But there was no sign during the hearing that Roberts was perturbed by this departure from past practice.

Some Justices questioned whether the Court had jurisdiction in the case, though five votes for that conclusion seemed unlikely. The jurisdiction questions arose from the unusual posture of the Justice Department: it argued that DOMA is unconstitutional even though it also has the duty to defend the validity of all federal laws. To maintain both this substantive position and to ensure that appellate courts would have jurisdiction to review lower-court opinions, DoJ (unlike what California officials did in the Prop 8 case) continued to participate in the litigation and to file appeals even when the lower courts found DOMA invalid.

Thus, DoJ was in the position of appealing decisions that it had “won” in the sense of agreeing with the lower court, even though it had also lost, in the sense that a federal law was being stricken. At least some Justices believe that the administration can’t have it both ways (though DoJ has taken essentially the same steps in a handful of prior cases). Meanwhile, defending DOMA substantively was left to private attorneys retained by House Republicans, whose position more closely resembled that of an amicus than that of a party.

In the end, however, the Court has compelling institutional reasons to use the case before it now to resolve the merits about DOMA, rather than to delay that inevitable day of reckoning.

Pro sports can do more to help roll back the tide of sexism and homophobia in American culture. Read Dave Zirin’s take.

The Supreme Court Is Fractured on Prop 8


(AP Photo/J. Scott Applewhite)

The Supreme Court argument in the California gay marriage case in a word: fractured. The Justices steered arguments back and forth between standing questions (whether a private group of Prop 8 proponents could assume the mantle of state officials to defend Prop 8) and the constitutional merits: whether it is permissible for a state to deny gay couples access to marriage. Toward the end of the argument, things got even more fractured, as Justices debated with the lawyers and among themselves whether unconstitutionality was an all or nothing proposition, or whether, paradoxically, only states like California that have extended all marital rights except the label itself would be forced to go all the way to full equality, leaving for another day the question of whether states that offer no legal protection were acting constitutionally.

The argument had lasted less than a minute before Chief Justice Roberts directed Charles Cooper, arguing in defense of Prop 8, to address the standing question first, a sequence that the Chief imposed on each attorney. By the end, several Justices appeared skeptical at best over whether their decision should reach the merits. Others, including Justices Kennedy and Alito, appeared to be more concerned that failing to find standing would allow state office holders to kill a law they disagreed with by not defending it. The only point of law during the entire argument that seemed to command wide agreement was that standing was “a close question.”

On the merits, Justice Ginsburg pointedly noted that the lower-court opinion in this case required a ruling only as to California, but Justice Keenedy, whose opinion in a 1996 gay rights case was the basis for the Court of Appeals’ reasoning, called it “an odd rationale,” and none of the Justices seemed likely to use it as a starting point. Justice Sotomayor asked almost plaintively at one point, “Can this case be decided in a way limited to California?” In general, there were few surprises in the suggestions of the Justices’ likely leanings.

As for the swing Justice, Kennedy, he seemed to waver during the argument. He initially seemed less troubled than several other Justices by the standing question and more concerned that the decision by California voters could die by default unless the Court allowed the groups that organized the campaign to pass Prop 8 were allowed to undertake its legal defense. Late in the argument, however, he raised an even more fundamental question: whether the Court should have granted review in the first place, since gay marriage raises issues about children that constitute, in his view, “uncharted waters,” referring to the argument that gay marriage is too new an institution for the Court to be certain that a decision mandating it would be prudent. and the decision by the Court of Appeals for the Ninth Circuit was “very narrow” with “an odd rationale.”

It would be highly unusual, though not unprecedented, for the Court to conclude after briefing and argument that review was “improvidently granted.” Such a result would require five Justices, and actually killing the case on those grounds seems like a long shot. When Justice Sotomayor noted that the Court let issues of racial segregation percolate for fifty years, so taking a pass on a gay marriage dispute that is only four years old sounded sensible, Justice Scalia sought to cut off the exit option. “It’s too late,” Scalia said; “we’ve crossed that river.”

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My own prediction: it is at least quite possible that there will be no majority opinion of the Court. With a sharply divided Court, as this one is on multiple issues, that non-result happens with some frequency. What does “no majority” mean? If no single opinion is signed by at least five Justices, there is no precedent established that binds all other courts. For example, three Justices (Ginsburg, Sotomayor, Kagan?) may conclude that Prop 8 is unconstitutional, and two additional Justices (Kennedy, Breyer?) might conclude that the Prop 8 defenders lack standing or that the decision to grant cert should be reversed. Even if the largest number (four) of Justices on any one opinion agree that there is standing and that Prop 8 should be upheld, there would no one binding opinion.

The outcome in that kind of split would leave the trial court’s ruling on Prop 8 in place, because there would be no majority to reverse. The marriage litigation wars would continue with virtually nothing having been decided.

Editor’s Note: Stay tuned for more coverage from Nan Hunter on the Supreme Court arguments, and check out her primer on the Prop 8 case for backround.

What You Need to Know As Prop 8 Hits the Supreme Court


The US Supreme Court building. (AP Photo/J. Scott Applewhite)

Editor's Note: This post is republished from Nan Hunter's blog Hunter of Justice. Stay tuned for Nan's report back from the two days of oral arguments over same-sex marriage at the Supreme Court Tuesday and Wednesday!

The first gay marriage case to be argued (ever) in the Supreme Court is set for tomorrow at 10 am, in Hollingsworth v. Perry, the challenge to Prop 8. Here are some important points to listen for:

At the logical threshold of the case lies a question that has nothing to do with gay marriage: standing, a technical legal concept that has developed over many years of case law. Essentially (see a longer explanation here and a seven-part series here), the issue is whether only the state of California and its officials can defend Prop 8 or whether, since no officials were willing to do so, the groups that ran the pro–Prop 8 campaign can step into that role. If not, the appeal will have to be dismissed, and the original district court decision by Judge Vaughn Walker will go into effect. In other words, Prop 8 goes away, but the outcome is based on a ruling that creates no binding precedent for any other court (because district courts are the lowest level of federal courts).

The oral argument will provide the first indicator of how many Justices appear to be seriously examining this aspect of the case. Because standing law is so dense and because some of the equality issues may seem obviously right or wrong to the Justices, it would not surprise me if they use a big chunk of their time on Tuesday to ask questions about standing. That won’t necessarily mean that their opinions will omit discussion of the constitutional issues; it may just indicate that some of the Justices believe that debating gay marriage will produce more heat than light, while discussion of standing law might clarify something they remain unsure of.

On to the merits:

Charles Cooper, representing the defenders of Prop 8, will speak first and, assuming that he reserves time for a reply, also last. If there are tough questions about standing, he will be the target of those. But I doubt that he will begin his presentation on that issue. Instead, my bet is that he will open with an attempt to persuade the Justices of the key point in his reply brief: that while marriage of course centers on the commitment of two adults, what makes it worthy of all the benefits bestowed by law is the state’s interest in incentivizing marriage when those adults may have a child. Ergo, he argues, it is rational for the state not to extend those benefits to what he repeatedly calls “genderless” marriage. The big logical hole here is that California already extends all those material rights and responsibilities to same-sex couples, with or without children; all that is being withheld is the dignitary status of “marriage.” Surely some Justice is going to waltz him around the floor on that claim. It also seems possible, under Cooper’s theory, that states could bar infertile persons from marriage; of course they wouldn’t, but I think he has to concede that it would be permissible under the Constitution for them to do so. Finally, I do wonder if Justices Ginsburg, Sotomayor or Kagan will pursue the question of whether, if marriage truly is definitionally limited by gender, there might be a little problem with the constitutional prohibition on sex discrimination.

Ted Olson, representing the plaintiffs, has a different set of problems. His toughest questions will likely come from Justices worried about the consequences of a sweeping ruling that all laws banning same-sex marriages are unconstitutional. With popular support for gay marriage rising rapidly, they will query, why not let the democratic process produce the same ultimate result without shutting that process off by a judicial ruling (shades of Roe v. Wade debates). And, by the way, given recent gay rights successes, hasn’t this minority moved beyond the zone of political powerlessness that necessitates counter-majoritarian interventions? It will be interesting to see if Justice Scalia, who has been characterizing LGBT people as the favored and privileged mascots of cultural elites since Romer v. Evans in 1996, enters the fray on this point. Although Olson has not emphasized it, he could also win under the theory adopted in the Ninth Circuit, which held, that even if California had a rational basis for limiting marriage to different-sex couples, there was no rational basis for withdrawing access to marriage. (Prop 8 was preceded by a California Supreme Court decision holding that gay couples had a state constitutional right to marry.) Finally, Olson is surely preparing his rejoinder for the polygamy question: If marriage is a fundamental right that includes same-sex marriage, why would it not also include plural marriage?

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Following Olson will be Donald Verrelli, the solicitor general, representing the United States. The federal government is not a party, but filed an amicus brief in support of the plaintiffs and then asked for, and was granted, argument time. The SG brings an alternative basis for a pro-plaintiff ruling to the table, along with a potential weakness. The Justice Department is arguing in both Perry and Windsor (the DoMA challenge), that classifications based on sexual orientation must be subjected to heightened scrutiny under the Equal Protection Clause. The soft spot is that in Windsor, they have conceded that under the traditional, highly deferential version of the rational basis test, DoMA is valid. It’s unclear whether they would concede that point as to Prop 8. More interesting is DoJ’s urging of the “nine state solution,” i.e., their argument that even if a ban of gay marriage is not unconstitutional everywhere, it is surely unconstitutional in California, where the state’s recognition of full parental rights for gay parents belies any intent to limit relationship incentives based on childraising. In addition to California, there are eight other states that have civil union or partnership systems providing essentially equivalent material benefits but not the status of “marriage”: Colorado, as of last week, plus Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon and Rhode Island. If the Court opts for this middle way, the number of states with equal marriage laws would jump from nine to eighteen (plus DC).

Each side will have thirty minutes of argument time; the time on the plaintiffs’ side is divided, with twenty minutes for Ted Olson and ten minutes for the solicitor general. (The arguments can run longer if the Justices grant permission for an exchange to continue past the cut-off.)

If Congress ships the Postal Service down the river, will the Constitution go with it? Read John Nichols’s take.

Will the Supreme Court Be Left Behind on Gay Marriage?


The Supreme Court in Washington. (AP Photo/Evan Vucci)

In case you haven’t noticed, the biggest question facing the Supreme Court when it decides the gay marriage cases this spring has become whether it can rise to the level of LGBT rights ferocity already achieved by American business leaders, moderate Republicans and the Obama administration. By the end of last week, when all the amicus briefs in support of striking down California’s Prop 8 and the Defense of Marriage Act (DOMA) had been filed, support for marriage equality seemed to have been transformed into the new normal—at least outside the confines of the Court.

In fact, judging from the press coverage of the briefs, if the justices don’t rule in favor of gay marriage, it is the Court that will look bad. This perception is an incredible achievement, a brilliant exercise in political framing by the lawyers and legal organizations behind the two cases, who mobilized the amicus show of force. The business brief and the Republican brief, especially, are clearly designed to provide political cover for the Court’s five conservative Justices.

While nothing is certain, there is virtually unanimous agreement among lawyers and law professors that the tougher case for gay rights groups is the challenge to Prop 8 rather than the one to DOMA. The Prop 8 case raises the question of whether all of the forty other state laws banning gay marriage are constitutional, while DOMA implicates only a federal recognition policy that leaves variance in state laws intact.

The best hope for winning Hollingsworth v. Perry, the Prop 8 case, remains either securing a narrow ruling that invalidates only the California law, or persuading the Court that it need not reach the merits at all, relying on the argument that those defending Prop 8 lack the necessary standing because they are private parties that have no authority to enforce it. (The governor and attorney general of California declined to defend the law.) From the beginning, though, the Ted Olson–David Boies strange bedfellows team that brought the case has argued that every law banning gay marriage should be struck down. Even six months ago, that position seemed too radical to attract much support outside the circle of true believers.

Now, however, a ruling of national scope is precisely the outcome endorsed in the brief filed by 100 corporations and in the Republican brief signed by luminaries including former White House officials Ken Duberstein (Reagan chief of staff) and Stephen Hadley (Bush national security adviser); Iraq War hawk Paul Wolfowitz; two chairs of the Council of Economic Advisers under Bush; the former director of the Congressional Budget Office; a Justice Department official from the Nixon Administration; the former chair of the Federal Communications Commission, who is also Colin Powell’s son; and four former Republican governors. And, oh yes, Clint Eastwood.

What happened to make possible this conservative blessing of what had seemed to many like such a radical outcome? Fundamentally, the only change is that the political gestalt has shifted so that what was always a conservative claim—to gain access to the core institution for privatizing a broad range of social functions—is increasingly being endorsed by conservatives. Sooner or later, it had to happen.

Nonetheless, it is unquestionably true that the conventional understanding of where the center of American politics stands on this issue has dramatically moved. The reasons are many. A cumulative process, especially since 2009, has driven support for legalizing gay marriage ever higher in public opinion polls. The shock of the 2008 defeat in California catalyzed a younger generation of gay men and lesbians, with ardent support from straight allies, to insist on marriage as the premier gay rights issue. Since that election, gay groups have won a series of state-level battles, as several legislatures legalized equal marriage, including New York (with one chamber controlled by Republicans). At the national level, Congress repealed “don’t ask, don’t tell.”

The icing on the wedding cake came with last November’s election. Voters in three states affirmatively chose to adopt gay marriage, and Minnesota voters rejected the attempt to pass a Prop 8–like measure. Moreover, the first president ever to endorse marriage equality was handily re-elected, without his position ever surfacing as a controversial issue in the campaign. Indeed, support for gay marriage, along with immigration reform, has become the litmus test most frequently identified in the press for assessing whether the Republican Party can rebrand itself as moderate and escape terminal fuddy-duddyism.

Of course, the outcome in the Supreme Court will be decided not by polls or pundits but by nine individuals; actually by six, since there is no question as to which result Justices Scalia, Thomas and Alito will endorse. But Justice Kennedy, who wrote the two strongest opinions supporting gay equality in past cases, and even Chief Justice Roberts, who has no real track record in this area, are likely to take seriously the libertarian and business arguments for allowing gay couples to marry. Not doing so would continue the house-divided status quo, in which one’s marital status and even the possibility of divorce depends on an increasingly irrational mélange of different state laws. And, as the firepower across the political spectrum in support of gay marriage so dramatically demonstrates, the ultimate resolution is inevitable. Best just to bite the bullet and do it now.

If this all sounds a bit too good to be true, maybe it is. Justice Kennedy is also a strong believer in state sovereignty, and a decision forcing legal change in forty-one states may be too much for him to join. The great bulk of the US population lives in a jurisdiction where gay marriage is not legal. The defenders of Prop 8 will to try assuage the justices that if the political process is left to work, more and more states will re-amend their constitutions and change their statutes to gradually adopt gay marriage laws on their own, without judicial “interference.” In addition, the liberal justices who support gay marriage may worry that a sweeping Roe v. Wade–like decision will trigger a massive backlash. These considerations combine to make that standing argument sure seem like a nice way to kick a vexatious can down the road.

This is the new political environment in which the legal arguments about marriage equality will succeed or fail. But that might not be enough to put gay marriage supporters over the top. Supreme Court justices breathe the same cultural air that the rest of us do, but they don’t have the luxury that politicians have to just say, Hey, guess what, I’ve changed my mind on that one. The substantive legal arguments have to be both persuasive and consistent with other applications of the same body of doctrine. Even if a judge wants to see a certain result, the opinion “has to write”—the analytic structure has to support that result.

The substantive questions in the DOMA case (which also has a jurisdiction/standing question, though it is probably less likely to prove decisive than the one in Perry) all arise from the Equal Protection Clause of the Fourteenth Amendment. In previous civil rights cases, the Court has developed a set of increasingly stringent levels for reviewing legislative classifications, with racial classifications receiving the highest level, or strict scrutiny; and gender classifications requiring heightened scrutiny, which is somewhat less rigorous. The baseline and point of comparison for both is called rational basis review, a lenient standard under which courts defer to legislative judgment if the distinction drawn has a rational relationship to any legitimate government interest.

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So far, the Court has not explicitly applied either heightened or strict scrutiny to sexual orientation discrimination, but it did nonetheless strike down an antigay state law by applying what seemed to be a heightened version of rational basis review. As a result of the Supreme Court not being more transparent in its approach in gay cases, the lower federal courts are all over the board in terms of whether they apply heightened scrutiny, rational basis review with bite, or deferential rational basis review.

The selection of the standard is critically important because it usually determines the outcome as to whether a law is ruled unconstitutional. For example, the Justice Department argues in its brief that DOMA is unconstitutional if heightened scrutiny is applied, but valid if rational basis review is used, unless the Court uses heightened rational basis, in which case DOMA is unconstitutional after all. (Are you still with me?) The most important outcome of the DOMA case for the future of gay rights law is that the Court is likely to declare itself on which standard should be applied to any law that discriminates based on sexual orientation.

It is also true in Perry, the Prop 8 case, that the Court could determine the law’s constitutionality by using an equal-protection analysis. However, in that case there is another doctrinal option. Under the Due Process Clause (i.e., no state can deprive an individual of liberty without due process of law), the Court has held repeatedly that the right to marry is a fundamental right. When a law deprives persons of a fundamental liberty right, the denial must be narrowly tailored to achieve a compelling state interest.

Until just a few years ago, the majority of courts deciding gay marriage cases ruled that although there was a right to marry, there was not a right to same-sex marriage. Those two examples, judge after judge said, were just different, essentially and tautologically so. But US District Court Judge Vaughn Walker, who conducted the trial in the Prop 8 case, ruled that one basis for the law’s unconstitutionality is its violation of the due-process liberty right to marry.

The Olson-Boies brief in the Supreme Court opens with this liberty claim; the equal protection argument comes second. Usually litigators begin a brief with what they believe is their strongest argument, suggesting that Olson may push the Court for a victory based on recognition that the marriage-childbearing link being pressed by Prop 8’s defenders doesn’t justify denial of a right as important as marriage. Indeed, the first sentence in the brief quotes from a 1978 Supreme Court decision stating that marriage is “the most important relation in life,” a quotation repeated twice more in the first four pages of the brief.

If Perry is decided on liberty grounds, its scope will be limited to marriage rather than applying to all sexual orientation classifications. But for many people, that would be like saying that a truce applies only to ending a war, rather than preventing all future battles. If gay couples can’t be excluded from marriage, what forms of government discrimination could possibly be constitutional?

The next stage in this saga is that the Court will hear oral arguments in Perry on March 26 and in Windsor v. United States, the DOMA case, on March 27, in what will be a feast for constitutional law buffs. Based on the questions asked by the justices, the betting is certain to be fast and furious on how the cases will come out. That enterprise, however, is notoriously prone to mistakes, given how often the questions reflect a Justice playing devil’s advocate rather than tipping her hand.

Because these cases will be among the last argued during the current term, they will likely be among the last in which the opinions are issued. There is no deadline for when the Court must decide cases, but it will announce all of the term’s opinions before leaving for the summer. For gay marriage, that almost certainly portends nuptials—or not—in June.

Why are NFL prospects getting interrogated about their sexuality? Read Dave Zirin’s analysis.

Is the Supreme Court Argument Over Gay Marriage Really All About Straight People?

Line of people waiting to enter the Supreme Court
(AP Photo/Carolyn Kaster)

It’s Game On in the culture war. Those defending California’s Proposition 8 and the Defense of Marriage Act (DOMA) have filed the initial set of Supreme Court briefs in the cases that will be argued in late March. Reading these briefs leads you to a surprising conclusion: the gay marriage debate is really all about heterosexuals.

The briefs argue that the single most compelling reason either to prohibit same-sex marriage (Prop 8) or to forbid any federal agency from recognizing a same-sex marriage that is valid under a state’s law (DOMA) is to bribe heterosexuals who engage in “accidental procreation” to get married. That’s right—you might think you remember that Congress’s debate over DOMA in 1996 and the Prop 8 campaign in 2008 focused on vilifying gay people, but you’d be wrong.

Actually, you’re right. The Prop 8 campaign relied heavily on ads suggesting that same-sex marriage made it more likely that homosexuality, like an insidious communicable disease, could infect innocent children. DOMA had an additional and openly partisan twist: it was introduced and enacted in the summer of 1996 as a Republican tactic to force every incumbent Democrat to condemn or endorse gay marriage, the latter amounting to political suicide for all but those in the most liberal districts. Even more delicious to the GOP, the legislation forced President Clinton to antagonize either his gay supporters or what was then the overwhelming majority of Americans who opposed same-sex marriage, just before the election. Enter the last big wedge issue of the twentieth century and a win-win for conservative Republicans. That’s who we have to thank for DOMA and why it was enacted.

The hope and gamble of those now defending Prop 8 and DOMA in the courts is that they can reframe this history into one of policymaking grounded in rational economic choices. In this version, denying same-sex couples the option to marry is actually a backhanded shout-out to the gays: because same-sex couples are so deliberative and dedicated when they decide to become parents (after all, they have to be), they don’t need the enticements associated with marriage as incentives to follow through on commitments to their children. Reserving the status of marriage for different-sex couples, on the other hand, simply limits the incentives to those who procreate unthinkingly (read straight men) and who can’t be trusted to make the same commitments. Their argument as an equation: "Natural" gender roles + Biblical command to procreate = Marriage.

The funny thing is that there’s grain of truth in this. Not in the assertion that these laws grew out of neutral, well-intentioned responses to the needs of children or that what women need most is a reliable state of dependency on the father of their children rather than economic self-sufficiency. No, the grain of truth is that the material benefits and the cultural aura of respectability associated with marriage do encourage people to marry and reward them if they do. The conservatives’ big problem is not that some gays want to marry but that this effect seems to be working less and less on heterosexuals, who increasingly delay getting married or don’t get married at all. But does preventing gay people from marrying mean that straight people will be more attracted to the institution? It is silly to imagine that it would, and mean spirited to foreclose gay couples and their children from access to the social insurance programs that all our taxes support.

In the end, the main argument of those defending Prop 8 and DOMA boils down to a real headscratcher: the institution of marriage mixes economic advantage and cultural privilege with social control and discipline (as it should), so maybe if we talk enough about how heterosexuals will misbehave without the latter, the Supreme Court will let us keep the former to ourselves.

The other news in these briefs can be found between the lines: Fractures in the conservative political landscape—the world inhabited by gay marriage opponents—now permeate the legal claims.

Begin with the fact that neither of these two laws is being defended by the official legal officers of the respective jurisdictions that enacted them. California’s governor and attorney general abandoned defense of Prop 8 three years ago, and the Justice Department followed suit with regard to DOMA in 2011. And neither President Obama nor Governor Jerry Brown is worried about paying a political price for doing so. As a result, there are serious legal questions about whether the groups defending these laws even have standing to do so. You or I cannot force a court to decide the constitutionality of every law that we believe is wrong; plaintiffs have to demonstrate that they suffer an identifiable impact, not just that they disagree with it. Standing is the complex and technical area of law that establishes rules limiting who can file constitutional challenges to those who are burdened in material or institutional ways by the laws in question.

In the marriage cases, the typical standing question is flipped, because the issue is not who can challenge the laws but who can defend them. The group that organized support for Prop 8—the Proponents—argues that it should have standing because otherwise, a duly enacted state constitutional amendment will be declared dead, in effect, for lack of lawyers. The counter-argument is that there will be no meaningful impact on the Proponents if Prop 8 dies, because they have no responsibility to enforce or not enforce the state’s marriage law. The standing arguments resonate with those about Prop 8’s constitutionality: if gay marriage doesn’t cause any harm, there is no harm in not defending it.

The standing arguments in the DOMA case are somewhat different, involving the propriety of the Justice Department’s decision not to defend it and the authority of lawyers hired by the House of Representatives to step in and fulfill that function. In both cases, however, there is the possibility that the Court’s decision will address only the standing questions and not reach the merits (i.e., the question of whether the law satisfies the Equal Protection Clause). If that happens, the lower court decisions will become the final rulings. The lower courts have found the two laws unconstitutional, meaning that those decisions would stand, though not as nationwide precedents. Same-sex couples would regain the right to marry in California, but the final outcome regarding DOMA is less clear.

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There is another political fracture reflected more subtly in the briefing. The lead lawyers for the parties on the anti-gay side—Charles Cooper for the Prop 8 Proponents and Paul Clement for the House of Representatives—are two of the most skilled and highly regarded appellate attorneys in the country. Their briefs may or may not be persuasive, but they do not lack polish. They sound like what they are: the work product of top-drawer (and top-dollar) law firms.

To see how marginalized the on-the-ground groups trying to block gay marriage have become, you have to peruse the amicus briefs filed by organizations and individuals supporting Cooper and Clement. There are no bar associations, no professional associations, no national civil rights groups, no corporate business voices, and no big prestigious firms that have written the briefs. Some amici are formidable: the US Conference of Catholic Bishops and the Attorneys General of 17 states, for example. But most of the intellectual, professional and cultural elites have switched sides.

In the end, of course, it will boil down to the nine Justices and, as the world knows, most likely the contest will be decided by just one: Anthony Kennedy, an enigmatic, 76-year-old Republican from Sacramento. Justice Kennedy wrote both of the Court’s most important decisions in the field of gay rights: Romer v. Evans, striking down a Colorado state constitutional amendment that blocked enactment of civil rights protections for lesbians and gay men, and Lawrence v. Texas, which declared all sodomy laws invalid. It’s a pretty good bet that he will get the last word on marriage too.

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