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What Prop 8 and DOMA rulings from SCOTUS could mean

Today SCOTUS agreed to hear two of the gay marriage cases that had been submitted to them, and they were the two big ones — Proposition 8, California’s anti-gay marriage constitutional amendment, and DOMA, a law passed by Congress to prevent the federal government from granting federal benefits to those who are gay married.

The gay marriage court cases are a bit complicated because they are dealing with a few different issues.  I’ve noticed a couple people on Facebook confused about what exactly the court will be ruling on and I thought I would explain it a bit.

It should be noted that I am not a lawyer nor have I been to law school, I’m just really interested in constitutional law and prop 8.  I covered it somewhat obsessively when I lived in California.  I haven’t covered DOMA as obsessively.

PROP 8

Officially known as: HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

In 2008, California legalized gay marriage through the court system and began performing gay marriages in the state.  That fall, a constitutional amendment saying marriage was one man and one woman was passed by the general population, making gay marriage illegal again.  Immediately, the state was sued by several gay couples who wanted to be able to get married.

The original ruling, by Judge Vaughn Walker decided that the amendment was unconstitutional for several reasons, some narrow and some quite broad.  He declared gay people to be a population that had been historically discriminated against and deserving of heightened scrutiny when laws applied to them.  What that means is that, if you make a law concerning creating a “separate but equal” status or targeting a minority group in particular, the government must have a compelling interest in doing so that cannot be served by other means.  In this case, civil unions were not the same as marriage — historically we know “separate but equal” is not equal — and any denial of gay marriage was unconstitutional.

The district court issued a much more narrow ruling, saying that none of the broader things mattered to the case, but the fact that California allowed some gay people to get married during a specific period of time and then REVOKED access to that, the very specific case of Prop 8 meant that only California’s anti-gay marriage amendment was unconstitutional, but other states with anti-gay marriage amendments would not be affected by the decision.

As the decision is written, if the Court simply upholds the district court’s decision, gay marriage will become legal in California and nowhere else.  Historically, the court has tended towards narrow decisions, but because of the amount of cases it has been given and the complications of some states allowing gay marriage and others not and the general wave of public opinion it is possible that SCOTUS will write a broader opinion that will legalize gay marriage in general.

The other complication is that there is a suit also to determine whether the people participating in the suit have the right to do so, and if they don’t it can mean that none of the courts had the right to make decisions.  Basically, the government in California was like “I want nothing to do with standing on the wrong side of history, I’m not defending the amendment, it’s toxic” so other people stepped in.  California ruled that this was fine, but it’s still being brought before SCOTUS.  According to the release, SCOTUS is also considering the problem of “standing” so there is also a chance that the case will be more or less thrown out.

THREE POSSIBILITIES

1. Gay marriage is made legal in all states (Broadest ruling)

2. Gay marriage is made legal in California (What I think will happen)

3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

DOMA

Officially known as: UNITED STATES V. WINDSOR, EDITH S., ET AL.

The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following questions: Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives has Article III standing in this case.

This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights.  DOMA states that people who are gay married do not have access to federal marriage benefits.  This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

I think it most likely, however, that the court will be unable to find a constitutional justification for treating some marriages granted by states as federally acceptable while others are not.  I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

DOMA is not my area of expertise, though, so I’m happy to hear other feedback.

Comments

  1. Vicki says

    I knew they were likely to look at standing, but the “convince this court that it has jurisdiction and that we don’t have to defer to the executive branch” part of the DOMA one seems odd.

  2. sceptinurse says

    Thanks for the elucidation. Being a Californian who is pissed off that Prop 8 passed in the first place this is a good perspective to see. I was thinking during the election that maybe having this go to the Supreme Court wasn’t the worst thing that could happen. Granted it would have been nice if it had ended with the Circuit Court ruling but decided correctly it could have far reaching consequences for the future.*

    * Amusing ones too if you like seeing fundies heads explode.

  3. brucegee1962 says

    Does Obama’s justice department have to defend DOMA if the administration is opposed to it?

  4. thomwatson says

    THREE POSSIBILITIES

    1. Gay marriage is made legal in all states (Broadest ruling)

    2. Gay marriage is made legal in California (What I think will happen)

    3. The entire case is thrown out and who knows what happens then, it’s complicated, probably gay marriage would be legalized in California but I’m not entirely sure

    I would argue there are four possibilities. And I would amend:

    3. If the proponents are found not to have standing to appeal, then the original decision by Judge Walker stands. (The defendants clearly have standing; that is not being questioned, so their original case to Walker would not be thrown out; it is only the standing of the proponents to appeal that decision that is in doubt.) Same-sex couples would again be able to marry in California. (Personally, I hate the phrase “gay” marriage, since it suggests what I want and would have with my same-sex partner is a different kind of marriage than what someone wants and has with an opposite-sex partner — I will get a marriage license, not a “gay” marriage license; and we will marry at our home, not “gay” marry at our home — but that semantic fight may be a losing battle until it exists everywhere in the country.)

    And I would add:
    4. Prop 8 is upheld, and same-sex couples may not marry in California (until we are able to re-amend the state constitution). Additionally, a broad ruling that sexual orientation isn’t subject to higher scrutiny, and that the constitution doesn’t forbid discrimination on the basis of sexual orientation, could impact marriage equality efforts more broadly, making it nearly impossible to get equal marriage rights except at the ballot box, meaning wide swaths of the country wouldn’t achieve equality for decades, as well as impacting other LGBT equality battles (e.g., employment nondiscrimination protection).

  5. thomwatson says

    Does Obama’s justice department have to defend DOMA if the administration is opposed to it?

    If an administration merely is opposed to a law, they typically still have to defend it. In the case where they actually believe the law to be unconstitutional, as the Obama Administration does with DOMA, they do not have to defend it. I would point out that Obama’s is not the only — nor even the only Democratic — administration to refuse to defend laws it believes to be unconstitutional. I would also point out that while the Obama Administration isn’t defending DOMA in courts, it is still enforcing it, something the opposition tries to obfuscate when they aren’t outright lying about it.

  6. thomwatson says

    This case is a little more straightforward than Prop 8, if only because it’s not dealing with the minutiae of state law in addition to the question of gay rights. DOMA states that people who are gay married do not have access to federal marriage benefits. This has been ruled unconstitutional and, like in Judge Walker’s opinion, gay people have been declared a minority deserving of special consideration.

    The case the Court chose, the Windsor case, actually came to its conclusion that DOMA is unconstitutional using just rational basis, rather than a heightened degree of scrutiny, so the court wouldn’t have to address that when it hears the case. I suspect they might do so nevertheless.

    Like Prop 8, however, SCOTUS has to consider the issue of standing and could decide that the people participating in the suit don’t have the right to do so and could then throw the thing out entirely.

    Yes, and it’s more complicated, because they’re suggesting not only that the BLAG might not have standing to appeal, but that because the government — defined broadly — did not disagree with the lower court’s outcome, that the Supreme Court doesn’t even have jurisdiction over the case. That would let the lower court decision stand, but that would create an untenable situation, because the result would only apply to states in that one circuit. So the Supreme Court would end up creating a situation where a federal law is unconstitutional for citizens of some states but constitutional for those in most others, clearly violating equal protection. They’d make the kind of situation they exist to resolve.

    I also think that, if California will have gay marriage, it will be incredibly difficult to justify not recognizing them federally, simply because California represents such a large portion of the US population.

    If you mean that if DOMA falls it needs to fall everywhere, I agree; that’s the point I made in talking about how the Supreme Court really can’t let split circuit decisions on DOMA stand. But if you’re saying that a narrow positive outcome in Prop 8 — restoring marriage equality to California — would make the court more likely to rule more broadly in Prop 8 — making marriage equality the law of the land — or that it would impact their decision on DOMA, I disagree. I do believe DOMA actually will be found unconstitutional by the Supreme Court, but largely on the basis that marriage traditionally has been a matter left to the states, and the federal government has incorrectly intruded itself into a states’ rights issue. But I don’t think SCOTUS is ready to go the other direction just yet, to rule that just because a state with a large population is allowing same-sex couples to marry means that the entire country must do so. If we look at Loving v. Virginia as similar, they waited until most states already had overturned their own anti-miscegenation laws before requiring all states to do so — and they did it against public opinion, which didn’t find a plurality accepting interracial marriages until the 1990s. Here, though we have public opinion on our side, and growing, we only have 1/5 of the states on our side, but 31 of them constitutionally against us and a half-dozen or so others legislatively against us. I think SCOTUS will find some way to punt on addressing the deeper constitutional issues so that they don’t have to find for marriage equality nationally just yet, but I do think they’ll kill DOMA for other reasons, reasons even many true conservatives should be able to support.

  7. thomwatson says

    I left out a phrase in this sentence: “But I don’t think SCOTUS is ready to go the other direction just yet, to rule that just because a state with a large population is allowing same-sex couples to marry means that the entire country must do so…”, which should be appended by “ or that the federal government must necessarily recognize such marriages for that reason alone.” (But, as I additionally noted, I think that they’ll rule that the federal government must recognize such marriages anyway, for other reasons unrelated to population or public opinion.)

  8. thomwatson says

    So, IANAL either, but I am part of the national team for Marriage Equality USA®, whose mission is “To secure legally recognized civil marriage equality for all, at the federal and state level, without regard to sex identity, gender identity or sexual orientation.” My opinions here come not from any professional expertise but, like Ashley’s, come from following all of these cases very closely for a number of years, not just for my work on behalf of the organization but because I am one-half of a same-sex couple in California whose right to marry is being denied, which makes my obsession with the cases quite personal as well.

  9. thomwatson says

    Grrr… I got sloppy and used the wrong word in one of my earlier comments.

    The defendants clearly have standing; that is not being questioned, so their original case to Walker would not be thrown out; it is only the standing of the proponents to appeal that decision that is in doubt.)

    This should read that the plaintiffs clearly have standing, i.e., those who sued to get married. The defendants and the proponents are, in fact, the same group of people.

  10. nathanaelnerode says

    OK, some details on the standing issue.

    If the court rules that BLAG or the Prop 8 backers do not have standing, this is a *win* for same-sex marriage — which goes into effect — but a *loss* for the ability to challenge laws in the courts in general. Basically, it would stand for the principle that the executive branch can decide to get rid of laws all on its own. I am not happy with this as precedent, even though at the federal level it is in some sense a fait accompli (the executive can now assassinate people, kidnap people, start wars, etc. with no oversight, so his ability to eliminate laws is effectively complete already).

    As you noted, the court has two other “good” options on Prop 8: a narrow ruling restoring marriage rights in California (which everyone thinks is likely) or a broad ruling akin to Loving v. Viriginia (which most people think is unlikely, but who knows what Anthony Kennedy is thinking?). Obviously the “bad option” of the court ruling that bigotry is OK is possible, but seems very unlikely based on the vote counting, remembering Kennedy’s history.

    If the court rules on the merits on DOMA, it will probably be overturned outright; it was never justifiable and it now has multiple state governments lined up against it.

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