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DOMA Likely Gone, But on Narrow Grounds

Lyle Denniston’s recap of the oral argument in Windsor v United States reaches much the same conclusion that most other observers have reached, that there appears to be five votes for overturning Section 3 of the Defense of Marriage Act, but likely not on broad equal protection grounds. Justice Kennedy, again the key swing vote, was very skeptical of the law on federalism grounds:

If the Supreme Court can find its way through a dense procedural thicket, and confront the constitutionality of the federal law that defined marriage as limited to a man and a woman, that law may be gone, after a seventeen-year existence. That was the overriding impression after just under two hours of argument Wednesday on the fate of the Defense of Marriage Act.

That would happen, it appeared, primarily because Justice Anthony M. Kennedy seemed persuaded that the federal law intruded too deeply into the power of the states to regulate marriage, and that the federal definition cannot prevail. The only barrier to such a ruling, it appeared, was the chance – an outside one, though — that the Court majority might conclude that there is no live case before it at this point.

After a sometimes bewilderingly complex first hour, discussing the Court’s power to decide the case of United States v. Windsor (12-307), the Court moved on to explore DOMA’s constitutionality. And one of the most talented lawyers appearing these days before the Court — Washington attorney Paul D. Clement — faced fervent opposition to his defense of DOMA from enough members of the Court to make the difference. He was there on behalf of the Republican leaders of the House (as majority members of the House’s Bipartisan Legal Advisory Group), defending the law because the Obama administration has stopped doing so.

Justice Kennedy told Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage. Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.” He questioned Congress’s very authority to pass such a broad law.

Moreover, Kennedy questioned Clement’s most basic argument — that Congress was only reaching for uniformity, so that federal agencies would not have to sort out who was or was not married legally in deciding who could qualify for federal marital benefits, because some states were on the verge of recognizing same-sex marriage.

But there almost certainly aren’t the votes there for a broad ruling based on basic equality questions:

There did not appear to be a majority of Justices willing to strike down the 1996 law based on the argument that the Obama administration and gay rights advocates have been pressing: that is, the law violates the Fifth Amendment guarantee of legal equality in general.

If the House GOP leaders’ lawyer had trouble on Wednesday, so did the federal government’s lawyer, Solicitor General Donald B. Verrilli, Jr., who was pushing for a wide-ranging ruling that might have the potential to outlaw any ban on same-sex marriage. It was not apparent that Verrilli was making much headway with his argument that any law that treats gays and lesbians less favorably, because of their sexual identity, should have to satisfy a stricter constitutional test.

It appears likely after oral argument in both marriage equality cases that the pro-equality side will get very narrow victories. In the Prop 8 case, the victory is almost by accident because the court is likely to dismiss the case based on standing that would apparently leave the district court ruling in place (for reasons I don’t quite understand) that overturned Prop 8.

And in the DOMA case, I think we’ll see a plurality opinion. Kennedy will write the majority opinion striking down Section 3 on federalism grounds, joined by the four liberals on the court who will sign on to a concurring opinion arguing for a much broader ruling on 5th and 14th Amendment grounds. What will be very interesting to watch is whether those four justices also argue for heightened scrutiny. I doubt Kennedy will, but if those four justices do, that will help establish a precedent for lower court judges to grab onto in future cases.

But in general, I do not expect the Supreme Court to issue a broad ruling that marriage equality is required by the Equal Protection Clause for several more years, at minimum. I think once the states begin to repeal their bans on same-sex marriage and institute legal marriage for gay couples in 15 or 20 states, then we’ll see the Supreme Court come in and finish the job. Minnesota was the first to do so and I expect several more states to do so, including California, in 2014 and 2016.

Comments

  1. tubi says

    Minnesota didn’t repeal the ban on SSM. We only defeated the effort to elevate the existing ban to the status of a constitutional amendment. Which is victory enough. There has been a law introduced in the current legislative session to repeal the law that’s on the books. It won’t get much traction until the budget bills are sorted out, though, which could take us to the end of April.

    I do agree with the overall sentiment-that we will get narrow but favorable rulings that push incrementally toward full equality.

  2. mobius says

    Sadly, I doubt we will see a repeal of such a ban in Oklahoma anytime soon. In fact, I expect my state to be forced to repeal it by some future SCOTUS decision.

    Such is life in the Buckle of the Bible Belt.

  3. says

    In the Prop 8 case, the victory is almost by accident because the court is likely to dismiss the case based on standing that would apparently leave the district court ruling in place (for reasons I don’t quite understand) that overturned Prop 8.

    Unlike mootness, standing is addressed separately at each level of review (though a lack of standing can be determined to have also applied at a lower level). At the District Court, there was standing. Plaintiffs had a clear claim to injury (prevented from marriage), the defendants clearly were the cause of said injury, and the court had the ability to rectify the situation. Even if the defendants refused to offer a defense and nobody stepped in, the correct remedy would be to issue a default judgment. However, a defendant is under no obligation to seek an appeal. So a defendant-intervenor must show standing independent of the named defendant in order to be allowed to appeal. They have to show that they either 1) have a particularized injury due to an adverse ruling, or 2) are proper defendants. The California Supreme Court ruled that they are proper defendants under state law. (Their justification is that a ballot initiative is a way of forcing the government to adopt a law that it otherwise would not adopt, and therefor the government may have a conflict of interest in defending the law – if the government refuses to defend the law, the proponents then become the entity that is responsible for the law’s defense.) The 9th Circuit adopted their rationale. If the rationale is wrong, then there is no standing, and the 9th Circuit could not have reached a decision on the merits, thus vacating their decision. Since there was standing at the District level, that decision would still be valid, since the case is not actually moot.

    And in the DOMA case, I think we’ll see a plurality opinion. Kennedy will write the majority opinion striking down Section 3 on federalism grounds, joined by the four liberals on the court who will sign on to a concurring opinion arguing for a much broader ruling on 5th and 14th Amendment grounds. What will be very interesting to watch is whether those four justices also argue for heightened scrutiny. I doubt Kennedy will, but if those four justices do, that will help establish a precedent for lower court judges to grab onto in future cases.

    I agree, with the addition that the Chief Justice joins in Kennedy’s decision. IF, that is, they grant standing. It looks like they’ve found a path to standing. Hoping that Breyer is not the author of the concurrence – I’ve found his jurisprudence to be a bit sloppy for my tastes.

  4. abb3w says

    @2, mobius

    Sadly, I doubt we will see a repeal of such a ban in Oklahoma anytime soon. In fact, I expect my state to be forced to repeal it by some future SCOTUS decision.

    I suspect the “repeal” may come from a federal reversal on DOMA section 2, requiring states recognize marriages from other states as valid regardless of whether they are gay or straight, combined with Nevada adding gay marriage to their existing marriage tourism options. This will leave the OK ban effectively toothless.

  5. says

    Also, I strongly doubt that Kennedy will leave the 9th Circuit decision untouched. In the unlikely event that standing is found, expect it to be vacated, vacated and remanded in light of the DOMA decision (high odds), or affirmed on other grounds after review de novo..

    Keep in mind that there are several cases on hold in the 9th Circuit that are a better vehicle in terms of standing. A punt at this point gives SCOTUS a brief respite and would allow the political situation to clarify. This has got to be tempting to those justices not willing to commit quite yet.

  6. says

    Reading the Tea LeavesThe two latest posts on scotusblogs seem to suggest that prop 8 will likely be upheld because many of the justices are unsure about the social impact of same sex marriage. They think the gendered relationship is important, and don’t view same sex marriage as discrimination. I am surprised by the Justices’ comments that John Bursch and Gerrard Bradley include in their posts. I’m really concerned that prop 8 will stand, and that the states will decide who gets to marry.

  7. robertharvey says

    This is one of the few areas of law where there is a principled federalism argument.

  8. anubisprime says

    Well if I understand correctly, admittedly not guaranteed, this probability of outcome from a conservative and reactionary court…then take the money and run !…could be as good as it gets in the foreseeable!

    DOMA…more then likely gone and Prop 8 dismissed on grounds of no standing sounds about as good as it gets.

    But I suppose anything can and does happen under SCOTUS auspices, and what looks likely early on turns out to be anything but.

    I wish all those affected by these rulings fair winds, calm seas and long life.

  9. says

    Keep in mind that the two SCOTUSblog posts were written by guest contributors that have a bias in the outcome, in that they authored amici briefs in favor of Prop 8.

  10. gshelley says

    Does this mean the four liberals are going to have to sign up to an opinion that marriage in a States rights issue and not a Federal concern?

    Other than being annoyed that the Obama administration is making them rule on this, did Roberts give any indication he found the pro-DOMA arguments appealing. He doesn’t seem to have the animus to homosexuals that Scalia does (despite Scalia’s claims not to in some of the early rulings?), but also seems on record as generally supporting the legislative position unless an issue is particularly important to him.

  11. joseph says

    Justice Kennedy has in the past used federalism as a core rational in his decisions. In EPA v Mass. he ruled for the states arguing for regulation of greenhouse gases by the EPA and dismissed the defendants only leg to stand on, their position that Massachusetts et al had no standing.

    He even bucked the trend of Supreme Court cases that reduced parties access to the courts on standing. The Supreme Court had been ruling that in cases involving the government verses citizens the courts were not the proper venue. Kennedy wrote that because Massachusetts was a state government the plaintiffs had standing, using an old Supreme Court decision as precedent. The dissenting conservative judges wrote a strongly critical dissenting opinion of Kennedy’s expansion of standing.

    It will interesting to see what the court decides and what the opinions are.

  12. bnerd says

    I think this outcome is likely as well. Unfortunately, I think it’s also a very weak justification for striking down DOMA too. It seems to me that if States have the power to define marriage and the Federal Government does not, that brings into question why so many *Federal* rights are attached to marriage in the first place. Don’t get me wrong, as a gay man I’ll be cheering the day an opinion striking this law down is released, but I wish the Court would take a better approach to it than this.

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