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SCOTUS Will Hear Marriage Equality Cases

The U.S. Supreme Court, in a widely anticipated move, has agreed to hear appeals in two important marriage equality cases. The first is UNITED STATES V. WINDSOR, the New York case challenging section 3 of the Defense of Marriage Act. And the order granting the appeal is very interesting, for several reasons:

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.

Okay, this is kind of entering the twilight zone. When the Obama administration announced that it was no longer going to defend the constitutionality of DOMA, the House then hired the Bipartisan Legal Advisory Group to defend the law in court. So the court wants to hear argument on two questions here: Whether BLAG has standing to defend the law and whether the executive branch’s agreement with the lower court takes away the Supreme Court’s jurisdiction to hear the case. It’s that second question that is really a huge can of worms.

The potential argument here is that if BLAG has no legal standing to defend the law and the executive branch agrees with the ruling of the 2nd Circuit Court of Appeals, then no one is injured and no one has standing to defend the law. But what does that do to the lower court rulings? Does it vacate those rulings and therefore leave DOMA in force? Or does it leave those rulings in place? Either result is bizarre. Even more bizarre is that such a ruling would make it impossible to challenge DOMA unless Obama is replaced in four years by a president who wants to defend the law.

If it leaves DOMA in force, that would perversely mean that the plaintiffs can’t challenge the constitutionality of the law because the government refuses to defend the law as constitutional. But if that leaves the lower court rulings in place, then DOMA is enforceable in some circuits and not in others. Gay couples in the 2nd Circuit would get federal marriage benefits because the appeals court struck down the law, while gay couples in a circuit where DOMA was upheld would not. And that would raise obvious equal protection problems.

So what the hell is going on here? My buddy Dan, who teaches con law, thinks that this may all be due to intrigue inside the court. You’ve probably got four clear votes to overturn DOMA and four votes to uphold it (no such vote has been taken yet, of course, but the justices almost certainly know how each one is going to vote if the court rules on the merits of this case. Except one: Anthony Kennedy. They don’t know where he’s going to come down, so one or both sides might well be putting these questions in there so they can punt the case on procedural grounds if it looks like Kennedy isn’t going to side with them after oral argument is heard. Oh what tangled webs they weave…

The other case they’re going to hear is Hollingsworth v Perry, which is the Prop 8 case out of California. Here’s the order on that one:

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.

This was a similar situation to the one above, in that the government of California refused to defend the constitutionality of the law banning same-sex marriage. The California state courts then allowed the group that proposed the referendum to intervene as defendants to advocate for the constitutionality of the law. The question of whether that group has legal standing is fairly predictable, but I have no idea how the court might rule on that question.

As I’ve said before, I think the court’s entire standing doctrine is contrary to the Constitution and entirely artificial and invalid. But standing questions almost always involve plaintiffs, not defendants. In these cases, where the government decides not to defend a law, someone has to represent that law in court and argue in its favor. I see no reason why standing should not be given to the defendants in both of these cases, even under the current standing doctrine that I oppose.

But that jurisdiction question in the DOMA case? Utterly mystifying to me.

Comments

  1. cheesynougats says

    IANAL, but wouldn’t SCOTUS claiming it did not have jurisdiction over the case end up with the same result as denying cert?

  2. fastlane says

    It seems to me that some members of SCOTUS might be really trying to put some ridiculous restrictions on standing. Those restrictions might last long past their tenure, and really make things difficult to bring to the SCOTUS in the future, or at least give future courts an easy out whenever they want one. Depending on how things go, though, this might wind up being good in the long run…hard to say.

  3. says

    IANAL, but wouldn’t SCOTUS claiming it did not have jurisdiction over the case end up with the same result as denying cert?

    Maybe, but that’s entirely unclear at this point. Denying cert leaves the appeals court ruling in place, which means DOMA would be unconstitutional in the 2nd Circuit (but not elsewhere). It’s not at all clear whether this jurisdictional argument would leave the lower court rulings in place. I can’t imagine why they would (if the SCOTUS doesn’t have jurisdiction under Article III, neither would the lower courts). But that would also make the law unchallengeable even while the government itself admits that it is unconstitutional, which would be quite bizarre.

  4. cheesynougats says

    @Ed at 4;

    Aha. I was confused; I thought you meant that denying jurisdiction would reverse the lower court decision, and I couldn’t figure out why that would be. You are certainly right that denying jurisdiction would certainly lead to different circuits enforcing different version of the law. It seems to me that, since such a patchwork would violate the 14th Amendment, SCOTUS can’t deny jurisdiction because it would result in a 14th Amendment violation almost immediately. Of course, I don’t know whether the courts think that far ahead.

  5. dmcclean says

    Maybe, but that’s entirely unclear at this point. Denying cert leaves the appeals court ruling in place, which means DOMA would be unconstitutional in the 2nd Circuit (but not elsewhere). It’s not at all clear whether this jurisdictional argument would leave the lower court rulings in place. I can’t imagine why they would (if the SCOTUS doesn’t have jurisdiction under Article III, neither would the lower courts).

    That doesn’t seem to me to be completely certain. Might not the court with original jurisdiction have had jurisdiction, because the original petitioners had standing having been injured by DOMA, without anyone necessarily being able to hear an appeal now that there is nobody with standing to challenge the lower court ruling? Leaving the SCOTUS with some kind of imaginary jurisdiction that they could exercise, if somebody somewhere existed with standing to bring the case?

    It seems like we accept the opposite sort of result fairly often, where laws are clearly unconstitutional but there aren’t any individuals with standing to challenge them?

  6. slc1 says

    Another possibility in the Prop. 8 case is that the court may be looking for an excuse to punt, given that the case was so narrowly decided in the 9th Circuit.
    As I understand it, if they deny standing, they are thus neither affirming nor overturning the decision. A nice excuse to dodge the issue for another time.

  7. drr1 says

    It gets even more procrustean. Over at SCOTUSBlog, there was some speculation on the live feed that if it found no Art. III standing in the Prop. 8 case, the Court might vacate the 9th Cir. decision, also on standing grounds. But one of the writers there said that the district court decision (striking Prop. 8) would stand, because – their reasoning, not mine – no one disputed the standing of the Prop. 8 backers in the district court. Well, if the standing of the Prop. 8 backers was in doubt because of a lack of a cognizable injury, that’s a constitutional standing requirement. No amount of agreement between the parties could overcome that sort of jurisdictional defect.

    As to the DOMA case(es), I really haven’t plowed through the implications of a possible lack of standing. Keep in mind that it was the government’s cert. petition that was granted; the others, including Windsor’s, are being held pending further proceedings. I just haven’t followed the procedural details of the other DOMA cases that closely, and can’t opine just yet. But with all the cases, parties, issues, petitions, and cross-petitions, it does get messy real fast.

  8. John Hinkle says

    Whether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case;

    Are not the Supreme Court’s rulings enforceable? Or are [certain] members of the Court fearful that the Executive might still insist the law is unconstitutional and refuse to enforce it, thus creating a constitutional crisis in the event the Court rules it constitutional?

    If I were on the Court, I would argue to my fellow jurists to not even bring up this question, as the Court’s decisions are final.

  9. baal says

    I don’t even know where to start with this one. I can only suspect I won’t like the legal reasoning regardless of which way they go. The recent SCOTUS has been less than enlightening on its reasoning.

  10. says

    Aha. I was confused; I thought you meant that denying jurisdiction would reverse the lower court decision, and I couldn’t figure out why that would be.

    I did mean that, though it’s not certain. But if the Supreme Court doesn’t have jurisdiction under Article III, I can’t imagine why the lower courts would have, since their authority also comes from Article III. It seems to me that if they ruled on jurisdiction, as opposed to standing, it would have to nullify all federal court rulings on the subject. But that leads to the other paradox, which is that the law would be constitutional by default even though the government refuses to defend it. And that’s bizarre.

    But it’s equally bizarre if the lower court rulings stand because that would mean DOMA is enforceable and enforced in some parts of the country but not in others, which creates an obvious 14th amendment equal protection problem. That’s why I said this is just baffling and unprecedented.

    Are not the Supreme Court’s rulings enforceable? Or are [certain] members of the Court fearful that the Executive might still insist the law is unconstitutional and refuse to enforce it, thus creating a constitutional crisis in the event the Court rules it constitutional?

    It’s not about enforcement, it’s about jurisdiction. If the Supreme Court decides that they don’t have jurisdiction in the case, they can’t rule on it at all. This has nothing to do with the executive branch refusing to enforce the law.

    Over at SCOTUSBlog, there was some speculation on the live feed that if it found no Art. III standing in the Prop. 8 case, the Court might vacate the 9th Cir. decision, also on standing grounds. But one of the writers there said that the district court decision (striking Prop. 8) would stand, because – their reasoning, not mine – no one disputed the standing of the Prop. 8 backers in the district court. Well, if the standing of the Prop. 8 backers was in doubt because of a lack of a cognizable injury, that’s a constitutional standing requirement. No amount of agreement between the parties could overcome that sort of jurisdictional defect.

    Actually, I think it would vacate the lower federal court ruling, but that would leave the California Supreme Court ruling in place and that means Prop 8 is gone. I believe the case they’re hearing is an appeal from the California Supreme Court, not Judge Walker’s U.S. District Court ruling.

  11. Aratina Cage says

    Actually, I think it would vacate the lower federal court ruling, but that would leave the California Supreme Court ruling in place and that means Prop 8 is gone.

    But the California Supreme Court upheld PropH8 and found that voters could take away fundamental rights:

    The court rendered its decision on May 26, 2009.[2] The ruling established that Proposition 8 was valid as voted, but that marriages performed before it went into effect would remain valid. ( http://en.wikipedia.org/wiki/Strauss_v._Horton )

    It was the federal court that first overturned it.

  12. Aratina Cage says

    Continued:

    But the California Supreme Court … found that voters could take away fundamental rights

    Which is why some Californians half-jokingly, half-seriously proposed an initiative in California that would ban divorce in the state, which the state supreme court then could not overturn under their own reasoning. Their decision was sickening.

  13. subbie says

    I can’t see any legitimate argument that would vacate all the federal court decisions. There’s no question that the plaintiffs had standing to challenge the law at the district court level. If there is a standing issue on appeal, under the worst case scenario, the appellate court rulings would be vacated but the district court decisions should still stand.

  14. hunter says

    Ed Brayton @ 11: Sorry, no — the Prop 8 appeal is the one stemming from the district court’s ruling invalidating Prop 8, which was a constitutional amendment overturning the CA Supreme Court’s original decision in favor of same-sex marriage. Overturning the district court’s decision would leave that amendment in place.

  15. John Hinkle says

    Ed:

    It’s not about enforcement, it’s about jurisdiction. If the Supreme Court decides that they don’t have jurisdiction in the case, they can’t rule on it at all. This has nothing to do with the executive branch refusing to enforce the law.

    Well shouldn’t the Supreme Court make up their minds whether they have jurisdiction before the case is heard? It would save a lot of tax $$$ and time at the Court. Pardon me, but I speak from ignorance, so ignore this if it doesn’t add to the conversation.

  16. says

    Well shouldn’t the Supreme Court make up their minds whether they have jurisdiction before the case is heard? It would save a lot of tax $$$ and time at the Court. Pardon me, but I speak from ignorance, so ignore this if it doesn’t add to the conversation.

    Well, that’s not how it’s done. The two sides have to argue it out. The weird thing is that I’m sure both sides will argue that the court does have jurisdiction. All of this is quite odd.

  17. whheydt says

    I think there is even more here than Ed addressed…

    As I understand it, if you are a plaintiff and the defense fails to show up (which would seem to cover both cases here if the defendants lack standing), don’t you win by default?

    In the Federal case on Prop. 8, if the USSC says the defendants don’t have standing, and then goes on to say that they *never* had standing (that is, it reverts to the trial court and there is no defense, since neither the Governor at the time–Schwartzenegger–and AG at the time–Jerry Brown–were willing to defend Prop. 8 and neither are the current Governor–the same Jerry Brown–and current AG–Kamala Harris), the the trial court decision should hold.

    That is likely the best possible outcome for defendants. Trial court decisions aren’t–technically, at least–precedents (though they DO get cited), but it is a much broader decision than the 9th Circuit decision.

    A lawyer friend of mine, when I asked him a few weeks ago, expressed the opinion that the USSC would take up the Prop. 8 appeal. His reasoning was that the conservative wing of the court is very afraid that any delay in dealing with this issue will have it come before a more liberal court, in light of Obama’s reelection.

    Personally, I think the Prop. 8 case is extremely dangerous for the defendants. Up through the appelate court, it only actually applied to California, and the appelate court narrowed their ruling so that it explicitly only fit the California circumstances. By appealing to the USSC, the defendants have opened up the possibility of a ruling that applies to the entire country.

    I don’t see any way for an appeal of Prop. 8 to eliminate SSM outside of California, but it could make it legal, even if only to the extent that states MUST recognize SS marriages performed–legally–in other states. Or it could go all the way and open up SSM nationally.

    If the USSC rules upholding Prop. 8 the obvious next move would be to start petitions to hold another vote on the subject to reverse it. Given the changes in the elecorate since Prop. 8 passed (and 52-48 is a pretty small margin), the odds are quite good that an effectively worded repeal coupled with an effective campaign would pass.

    On the whole, I would hope that the USSC would, at the very least, agree with the 9th Circuit…once a right is granted, it cannot be taken away by popular vote.

  18. drr1 says

    OK. Let’s puzzle this out as to the Windsor case.

    Plaintiff Windsor sues the United States alleging an equal protection violation. Initially, DoJ was going to defend but then – if memory serves, right before the answer was due – the Obama administration says it will enforce, but will not defend, DOMA Sec. 3. So the Bipartisan Legal Advisory Group (BLAG) intervenes at the invitation of the administration, and without objection from Windsor. At that point, it’s Windsor v. United States and BLAG. Note, incidentally, that BLAG challenges Windsor’s standing to sue, because at the time Windsor’s spouse died, NY had not yet adopted its same-sex marriage law.

    The district court rules in Windsor’s favor, applying the rational basis standard. BLAG appeals, of course. But the United States also appeals, because the Obama administration believes that heightened scrutiny – not rational basis – is the correct standard for classifications based on sexual orientation. BLAG responds that the administration is without standing to appeal, because the administration “prevailed” in the district court – it got a favorable judgment, but on grounds different than those it urged.

    On appeal, the Second Circuit affirms the judgment for Windsor, but of course, it applied intermediate scrutiny, not the rational basis standard, to reach its decision. The appeals court also concluded that the Obama administration had standing to appeal because the Court has, in the past, ruled that the Executive has standing to appeal even in cases where it thinks the law is unconstitutional. See, e.g., INS v. Chadha. Note, significantly, that at this point, the Obama administration has everything it wants: a favorable judgment, and on the grounds that it argued.

    Here’s where things get a little messy. Windsor and the United States both initially petitioned the Court for a writ of certiorari before judgment in the Second Circuit. Among other things, they wanted to expedite Supreme Court review because of Windsor’s age (she’s in her 80s) and poor health (serious heart problems). So, both of these petitions were pending when the Second Circuit handed down the decision mentioned above. But keep in mind the problem: the Obama administration ended up getting everything it wanted from the Second Circuit.

    Today, the Court granted the administration’s cert. petition. But the Court asked the parties to brief and argue the question whether the Obama administration’s agreement with the Second Circuit deprives the Court of jurisdiction to hear this case. Without getting bogged down in details, this sounds to me like it might be a bit more than the Chadha doctrine mentioned above. This could be a signal that the Court questions whether the Executive even has the sort of injury that might be cognizable for purposes of an appeal. But let’s leave that aside.

    Suppose that when all is said and done, the Court decides that the Obama administration did not have standing to appeal to the Court. What happens then? The Court would dismiss the appeal, being without jurisdiction to hear it. Beyond that, though, the Court could let the Second Circuit’s decision stand, on the theory that since the Obama administration disagreed with the reasoning behind the district court’s decision, the administration had standing to appeal to the Second Circuit. This would mean that sexual orientation classifications get intermediate scrutiny in the Second Circuit, but nowhere else. If the Court doesn’t like this result, it could vacate the Second Circuit’s decision, and let the district court decision stand. That decision would have no precedential force beyond the parties to the case, thus eliminating the unsettled state that would result if the Second Circuit decision remains.

    That, of course, would leave the DOMA question open, not having advanced the issue at all. Presumably, this isn’t what the Court wants, else it wouldn’t have granted cert. to begin with. It would then have to look for another DOMA case to review, and it won’t have to look far.

    My best guess is that the standing issue is a safety valve, if four Justices can’t get Justice Kennedy on board in an acceptable way. But I have a sneaking suspicion that Justice Kennedy might be ready to take the next step on gay and lesbian rights, and this case would be a good way to do that.

  19. divalent says

    I would think that, at the trial court level, if a defendant refuses to defend themselves, they lose by default. If it then goes to the appeal level, if no one has standing to take the place of an unwilling defendant, then the trial court ruling would have to stand.

    If a defendant wins at the trial level, but later refuses to defend on appeal, and if no one else has standing to take the defendants place, then it seems to me the same general outcome should result: defendant loses at the appeal level by default, and plaintiff should be granted the relief they plead for in their petition.

    A victor at the trial level (or, indeed, any level) should not be able to win on appeal (or higher level appeal) merely by not showing up.

    IOW, it seems to me that if the court finds that these stand-in’s don’t have standing, then the result should be whatever it would have been if the government failed to timely respond to the appeal.

  20. eric says

    Fastlane:

    It seems to me that some members of SCOTUS might be really trying to put some ridiculous restrictions on standing.

    That would be consistent with Roberts’ last big move: go ahead and play to the more liberal side of the court in order to establish a more far-reaching point of law. Here, it would be allow gay marriage but use the cases to put some nasty limit on standing.

    ***

    On a different note: as biased as Scalia and Thomas are, I can not believe the conservative faction of the court will be so ‘cut off your nose to spite your face’ vindictive as to claim SCOTUS has no standing in certain types of legal cases just to prevent gay marriages from occurring. But wow, what a far-reaching ruling that would be.

    Am I understanding it right, that this would be a complete screw-job on the legislative branch? If that’s how SCOTUS rules, then basically any law the executive refuses to enforce cannot be enforced by the courts. It would be giving the executive a second form of veto – through inaction.

  21. dingojack says

    I’ve only read down a few comments (<12), but this occured to me:
    Perhaps the idea is to create a circuit-by-circuit patchwork that can be overridden federally under the rubric of the 14th amendment?
    Dingo

  22. says

    In these cases, where the government decides not to defend a law, someone has to represent that law in court and argue in its favor.

    Why? In most cases if one side doesn’t show, then the other side wins by default, yes? Why should this be different? If the government, California or Federal, isn’t defending it, and no one else has standing, then the only reasonable course of action would seem to be to decide the other way. The plaintiffs have a case, the defendants haven’t, end of story.

  23. Childermass says

    Even if it give a sort of victory, the idea that if the executive refuses to defend the law ends standing could be dangerous. All the president (or governor) would need to invalidate any law he did not like would be some cronies to take the law to court where he would refuse to defend it.

    And on another subject, the equality movement needs to make a commitment to still getting state statuary laws changed even if the Supreme Court gives them everything we want. Don’t let up the pressure for a second.

  24. Michael Heath says

    All of these gyrations are due to conservatives fiercely attempting to deny the existence, and therefore avoid defending the equal protection clause of the 14th Amendment. A clause which is both clearly written and unambiguous:

    No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    And it is the very group of conservative justices who claim to be originalists, who love to use high-minded rhetoric claiming to be the sole group seeking to enforce the original meaning and intent of the clauses within the Constitution. Instead these self-identified protectors of that which is written in the Constitution are the group that instead fiercely denies or avoids the existence of this clause’s express limitation on state power and the delegation of power to the federal government to defend our individual rights when laws deprive us of equal protection as gay marriage prohibitions clearly do.

    Conservative denialism knows few bounds. Non-conservatives who do a service to us all if we always responded to their arguments on gay marriage by putting the equal protection clause front and center in our arguments. The language contained within the U.S. Constitution is devastating and reveals only dishonest bigotry are the premises which buttress conservative Christian arguments that are the fuel that’s created and defend the current set of laws against gay marriage.

  25. slc1 says

    Re MH @ #26

    MH should realize that many conservatives don’t consider the 14the Amendment to be legitimately part of the Constitution because, in their delusional world, it wasn’t legally adopted because of the absence of the Southern states.

  26. says

    It will be entertaining, in the sense that watching “American Idol” audition outtakes is entertaining, to watch Scalia, the “Constitutional textulist” tie himself in a fucking knot trying to use it to uphold Prop 8. The unentertaining aspect is when 4 of the other Supremes go along with it.

  27. whheydt says

    I don’t know if it will come up, but there is an interesting point to be made about the defendants in the Prop. 8 case.

    When Prop. 8 was challenged (unsuccessfully) in the California state courts, the same defendants did NOT ask the CASC to invalidate the SS marriages that took place between the CASC ruling that they must be legal in California and that passage of Prop. 8. (There are some 18 THOUSAND *legal* SS marriages in California.)

    That could, I think, be used to argue that the opposition to SS marriage isn’t nearly as deep as the defendants claim it is.

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