U.S. Supreme Court Will Hear DOMA and Prop 8 Challenges

The United States Supreme Court announced today that it would consider the appeals from of the ruling of the 9th Circuit which struck down California's Proposition 8 as unconstitutional and a ruling by the 2nd Circuit that struck down the Federal Defense of Marriage Act ("DOMA").  What  Court will do in each of the cases is the subject of an array of speculation with some hoping that the Court will rule broadly and strike down same sex marriage bans nation wide  strike down DOMA.  Perhaps a more likely result will be narrow rulings that avoid national application and (1) allow the 9th Circuit decision to stand, perhaps on a decision focusing on the standing of the Prop 8 defenders and (20) striking down DOMA to the extent is would apply to couples legally married in states which allow same sex marriage.  Should the narrower approach prevail it would be in keeping with the inclination of appellate courts to address issues as narrowly as possible while resolving the issue immediately at hand.  Make no mistake about what these cases are really all about: will a majority the Supreme Court have the collective courage to rule against religious based anti-gay discrimination discrimination or not.  The Williams Institute has summarized some of the ways the lives of LGBT citizens would change should the Court rule expansively|:

DOMA & Federal Recognition of Married Same-Sex Couples: United States v. Windsor raises questions about federal recognition of same-sex couples legally married under state law. Of approximately 645,000 same-sex couples nationally, at least 20% live in a jurisdiction where they can marry. From 50,000 to 80,000 of same-sex couples in the United States are legally married, and more than 85,000 are in civil unions or registered domestic partnerships. If federal recognition of same-sex couples comes as a result of the court’s review, changes to federal policies will have a profound impact on these couples. Changes to federal leave, tax and entitlement policies:

 

• Surviving spouses of same-sex couples would gain access to partners’ Social Security benefits, which could add over $5,700 to the monthly income of the surviving spouse. See study.

• In situations similar to that of the plaintiff in the Windsor DOMA case that the Supreme Court has decided to hear, same-sex couples who are affected by the estate tax would no longer be subject to a greater tax burden upon the death of their spouse than similarly-situated different-sex married couples.See study.

• Same-sex couples working in the private sector would no longer have to pay 11% more than different-sex couples in taxes for employer-sponsored healthcare. See study.

• Same-sex spouses of federal employees would be eligible for employee benefits that are currently provided to employees with different-sex spouses.See study.

 

Proposition 8 and State Recognition of Same-Sex Couples

Research suggests the court’s decision to review Hollingsworth v. Perry, the federal challenge to California’s Proposition 8, could impact thousands of same-sex couples.

“There has been extensive research on the lives and experiences of LGBT people and their families. This research has been critical in legal analysis of disparate treatment of same-sex couples under the law, including legal analysis by the federal trial court that ruled Proposition 8 unconstitutional in the case that the Supreme Court is now reviewing,” said David Codell, the Williams Institute’s Visiting Arnold D. Kassoy Senior Scholar of Law and Legal Director.

Research shows:

 

• There are nearly 100,000 same-sex couples living in California. See study.

• Over 24,000 same-sex California couples would be likely to marry within the next three years if permitted to do so. [Williams Institute Same-sex Couple Survey, 2010]

• If California recognized same-sex marriage, 35% of same-sex couples in the U.S. would live in states where they can marry; and 28% of the U.S. population would live in states where same-sex couples can marry.

• Extending marriage to same-sex couples has a positive economic impact. Wedding spending in Maine, Maryland and Washington could generate over $166 million in the first three years. In California alone, weddings could generate almost $290 million in new spending over three years.

Towleroad also provides some analysis that is consistent with my own, although, again, there is no way of knowing how the Court will actually rule.  Here are highlights:

One thing is clear: The reason the Court took so long to grant these hearings is the complexity of the orders and myriad options open to the Court. Evidently, there was also a lot of strategy involved. That is, even though the Court gave itself great space to decide every substantive issues, each order includes a jurisdictional question that would allow the Court to avoid the substance if it really wanted to.

Hollingsworth v. Perry, challenging California's Proposition 8. 
The Supreme Court is interested in the broader holding. Its order takes as the question presented whether, under the Fourteenth Amendment, California can define marriage as between one man and one woman. It did not limit its consideration of the case to the Ninth Circuit's taking away theory.

Plus, the Court will return to the "standing" question. If you recall, the Ninth Circuit Prop 8 decision took extra time because that court had to determine if the proponents of Prop 8, ProtectMarriage, could stand in the shoes of the state to defend the law when the state government refused to. The Court would like to determine that for themselves, and because jurisdictional issues are determined de novo -- "from the beginning" -- the Supreme Court is more than free to come to a different conclusion than the Ninth Circuit.

Windsor v. United States, challenging the Defense of Marriage Act.

This is the only DOMA case for which the Court granted a hearing. It said nothing about Gill, which was the First Circuit case decided on "rational basis with bite" and included a Tenth Amendment question. But, Gill was also the case in which Justice Kagan would have had to recuse herself, so that was the least likely to be granted.

The Court chose the Government's question presented -- Whether DOMA Section 3 (one-man, one-woman definition of marriage for federal purposes) violates the Fifth Amendment -- but also included two other questions: Does the fact that the Government agreed with the Second Circuit's decision deprive the Court of jurisdiction to hear the case? And, do House Republicans, who took up defense of DOMA when President Obama refused, have standing?

By these questions, the Court gave itself space to answer both the underlying merits of the DOMA challenge and the scrutiny question. After all, it may not be possible to decide if DOMA Section 3 is unconstitutional without first deciding how to answer the question, i.e., heightened scrutiny versus rational basis.

 

The orders on both Hollingsworth and Windsor include jurisdictional questions that could decide the entire matter outright without letting the Court get to the substance of either case. So, if some of the justices feel their position won't get 5 votes, they may be more inclined to live to fight another day by making non-precedential decisions on jurisdiction now. This speaks to one of the main reasons why it might have taken so long to come to these decisions: strategy. The ideological wings of the divided Court may have been looking for ways to have a fall back position if they could not get a swing vote on their side, and sometimes, jurisdictional questions that prevent wide application of a decision beyond the one at hand offer that kind of safe default position.

 

Granting Windsor gives the Court a unique opportunity to come together to declare DOMA unconstitutional, though it is not clear that the Court is ready to mandate heightened scrutiny. But, there is no doubt that the grant in Hollingsworth took me by surprise. Its framing the case in the broadest way possible offers a chance for a monumental victory or a great loss because the breadth of the case could have ramifications outside California. This is what Ted Olson, David Boies, and the AFER team wanted all along and the country is so much closer to accepting the freedom to marry in great part because of AFER's skillful engagement with the American public on marriage freedom.

What happens next? The Court has set the stage for a March argument and a decision on the last day of the Court's current term in late June 2013. For now, the Ninth Circuit's stay that prevents the implementation of Judge Walker's original order remains in place. Gays cannot marry in California just yet. But, they are oh so much closer to a resolution.

Obviously, I would love to see expansive rulings that would striker down anti-gay marriage bans nationwide.  I am long over being a second or third class citizen merely because spineless politicians and courts have for too long given deference to the religious based bigotry of ignorant morons and demagogues.  The Supreme Court has the opportunity to drive a stake through the heart of legalized bigotry and homophobia.  The issue is whether it will have the courage to do so even as courts - e.g., Mexico - and legislatures - e.g., Uruguay, Colombia, France and the United Kingdom are taking or are poised to take the steps that cowards on the bench and in legislatures in America have failed to take.