Home / General / Supremes To Hear Both DOMA and Prop 8 Cases

Supremes To Hear Both DOMA and Prop 8 Cases


My guess is that the Court will strike down both Section 3 of DOMA and Prop 8 on narrow rational basis grounds. On the former, I’m confident; on the latter, much less so.

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  • I noticed that they’re going to rule on the standing issue with Prop 8. Is that maybe giving them an out, so that they can rule that the backers don’t have standing and therefore, the lower court rulings stand?

    • Scott Lemieux

      Yeah, I may write about that later. I have an extremely hard time imagining that the Court won’t find standing,but you never know.

    • Chad

      Based upon nothing whatsoever other than my own hunch, I can’t imagine that the Court will fail to find standing, but I do think the Justices have *something* in particular to say about the way that standing was decided in this case. (It always struck me as extremely odd that the Ninth Circuit had to rely on a California court’s interpretation of California law to make their decision on Article III standing.)

      • Anon21

        Really? I thought it made perfect sense, since it was the existence of a legal relationship vel non between the proposition’s proponents and the proposition itself that ended up being decisive.

      • In Arizonans for Official English v. Arizona, 520 U.S. 43 (1997), the court expressed doubts that the proponents of a ballot initiative would have standing to defend the constitutionality of the state law.

        The court stated:

        Petitioners argue primarily that, as initiative proponents, they have a quasi legislative interest in defending the constitutionality of the measure they successfully sponsored. AOE and Park stress the funds and effort they expended to achieve adoption of Article XXVIII. We have recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests. AOE and its members, however, are not elected representatives, and we are aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as Article III qualified defenders of the measures they advocated.

        Emphasis added, citations omitted.

        The 9th Circuit apparently believed that if the California Supreme Court said the petitioners have standing, then California law provides that they have standing. My impression was that it was an attempted punt by the 9th Circuit, but the California Supreme Court kicked it right back to them.

  • Is there any remotely plausible way that same sex marriage WON’T be legal in California by next fall?

    • ResumeMan

      I’ll give you five plausible ways:


      I don’t know what will happen, but I certainly do not think that it is a slam-dunk that those five will not vote to approve Prop 8.

      • Ken

        Do you really think all, or even any, of them will be on the court in three months, after Obama declares himself dictator for life?

        • rm

          Shhh, we’re not supposed to talk about that yet, comrade.

  • AAB

    They have to decide the scrutiny issue at some point, and this seems like as good an opportunity as any. Whether they ultimately decide to apply rational basis or something else, I’m thinking they finally decide what level of scrutiny applies.

    • Davis X. Machina

      Who needs rational basis when you’ve got biblical basis?

      • expatchad

        Who needs …when you’ve got Scalia?

  • Chad

    When absolutely pressed for my opinion by a non-attorney friend, I wrote on Facebook:

    Sounds to me like it could easily result in the Court’s holding that the Fourteenth Amendment does not require states to recognize same-sex marriage (even states, such as California, that previously had), but that the federal government also must recognize whatever definition(s) of “marriage” the states have individually decided upon. That would be a *truly* minimalist opinion (not that I think minimalism is appropriate here) and could conceivable get both the votes of both Roberts and Kennedy — the latter could even compose a paean to how states *should* allow same-sex marriage, but that it is not the Court’s role to decide the issue (which would be the capstone in Kennedy’s LGBT-friendly jurisprudence, but still accord with his conservative/federalist bona fides).


    • Joe

      If Roberts is on board, I don’t think the opinion would say they “should” (though it can show its hand as to what it favors) but that they “could” and ala Washington v. Glucksberg that it is best for the states to experiment and that DOMA in effect inhibits that by disfavoring states that choose SSM.

      The question posed in Prop 8, if I’m reading the brief right at SCOTUSBlog is unfortunately broad: “Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

      Reinhardt went out of his way to be narrow and address just the situation in CA — providing marriage and then permanently by a means other than simple legislation (harder to change) removing the rights from a certain group. He suggested, e.g., CA could have done so for a short period of time if a “go it slow” approach was the concern.

      The question is broader and I’m wary about it.

      • Scott Lemieux

        That question doesn’t pre-empt a narrow ruling. Romer was an equal protection case, and the fact that the question is about California would allow them to answer it by upholding 9CA’s rationale.

        • Joe

          The thing that comes to mind for Romer is that Kennedy chose to approach the case differently than a major argument put forth by the gay rights supporters so there’s always that.

          I realize the ruling can be decided narrowly but the framing of the question is unduly broad and can be problematic.

      • Glenn

        Don’t read too much into the way the petitioner worded the question. Petitioners always try to word in a favorable way. Sometimes the Court will reword it, but usually only if they are intending to really change the issue. Scott’s right, all the grant means is that they’ve agreed to decide the Equal Protection issue — could be narrow, could be broad.

    • My thought is that previous rulings have leaned heavily on the concept of an established consensus on the definition of marriage in our society, and that the Court could now cite an evolving understanding of that definition in the area of same-sex marriage. We’ve all seen the pubic opinion data, and several states have now recognized gay marriage, as well as several foreign countries. There is a real change of fact in society that the Court could use to make a different outcome consistent with previous rulings, which used (the Court’s pronouncement of) the opinion of society as the relevant standard.

      If they went the “evolving consensus” route, then they would by very likely to afford wide protection to states’ decisions to recognize same-sex marriages (or not), including possibly federal deference to state marriage status in the provision of federal benefits.

      Hey, I just realized: that would mean married gay couples moving to Massachusetts when they got old enough for Social Security and federal pensions. Maybe we can actually start getting back something close to the dollars we pay in federal taxes.

    • My other thought is that the argument from the allegedly terrible, horrible brief that the Obama administration filed regarding the long history of state-level law defining marriage – you know, the one in which Barack Obama is quoted as saying that gay people are exactly like child molesters, including those who prey on family members, because he’s just that goddamned homophobic – is going to make a comeback, except this time, it’s going to be used in favor of advancing equal recognition of marriage.

      This time, however, everyone is going to understand that the brief is about the history of states, not the feds, determining the definition of marriage, and isn’t actually a comparison between being gay and assaulting your daughter.

      • Obama really is history’s greatest monster. Thank you for this information.

  • Murc

    I’ve said this before and I’ll say it again; I have a lot of contempt for John Roberts, but unlike Alito, Scalia, and Thomas, I don’t think he wants to be the next Roger Taney. The aformentioned three have no problem with only being heroes to a tiny cadre of hardcore reactionaries.

    But Roberts? Roberts is Chief Justice. “The Roberts Court” will be an actual era referred to in history textbooks, discussed in law classes. And ultimately, Roberts isn’t reactionary, or revolutionary; he’s establishment.

    And he sees which way the wind is blowing. He may DUCK the issue so that his conservative buddies don’t declare him the next Souter and rail about his betrayal… but he definitely doesn’t want law classes for the next century talking about him in the same breath as other famous justices who enshrined and protected bigotry.

    That’s how I see it, anyway. And this only applies to certain social issues; on economic ones he’s a firm vote for neo-feudalism and when it comes to abortion I can easily see him trying to gut it.

    • Benjamin

      I’m not sure where you can get that idea. The best hope for Roberts is that he’s a reactionary justice with gay friends.

  • MAJeff

    Don’t trust ’em. I’m guessing we lose on Windsor because they’ll attack the level of scrutiny. (As I recall, Windsor used a strict scrutiny standard.) The Prop 8 decision was narrow, and really drew on Kennedy’s work, but I’m not confident on that one either. I’m prepping for Bowers level depression.

    • I’m cautiously optimistic, because there are only three that I think are “Eww! Buttsex!” I could certainly be very wrong, but I don’t think either Roberts of Kennedy is rabidly homophobic. If there’s a way they can rule narrowly against DOMA and 8, I think they might.

      • MAJeff

        I don’t think Kennedy is “wwww buttsex” because he wrote the Lawrence decision. However, he was also clear in Lawrence that the decision had nothing to say about marriage. I just have a feeling it may be a bridge too far.

        I get the feeling a level of scrutiny decision may be the way they keep DOMA in place. Not enough of them will recognize marriage as an individual right and draw on jurisprudential tradition of it being a fundamental right requiring strict scrutiny. Instead, they’ll focus on “same-sex marriage” as a “right” not based in history and tradition, thus avoiding strict. And I don’t see enough votes to give sexual orientation that level of analysis.

        Just not optimistic.

        • Lawrence was almost 10 years ago, and not only has public sentiment shifted on SSM, but more importantly, it’s a fact on the ground. It’s easy to show that it places an additional burden on married same-sex couples solely due to their orientation. Between that and the federalist issue Peter mentions below, I think they have a way, if they choose, to rule narrowly and strike down s3 of DOMA.

          Prop 8 is a little trickier. In order to decide if state referenda can trump the 14th Amendment, they have to first decide if the 14th Amendment covers sexual orientation. On that, I agree with you that it’s a bridge too far. My hope is that’s why they’re also addressing the standing issue, so that they can rule on the issue without having to decide on the equal protection part.

    • Peter Hovde

      They don’t need strict scrutiny to strike s. 3 of DOMA-Kennedy can use a cocktail of federalism and Romer style rational+, holding that because Congress generally has left and does leave marriage rules to the states, there is no apparent basis other than animus for s. 3. That would be consistent with both AMK’s apparent ideological position and past doctrinal formulations he’s constructed.

      • Scott Lemieux

        This. One circuit has already used a Kennedy-style rational basis argument to strike Section 3.

    • Glenn

      Windsor used heightened scrutiny (a la gender), not strict scrutiny.

  • Peter Hovde

    The standing dodge is facially plausible in the Prop 8 case, and could be quite attractive to a range of justices. It kills Prop 8 without making any finding at all on the substantive issue.

    • Scott Lemieux

      I don’t know where the votes against finding standing are supposed to come from. The justices most hostile to standing — Scalia and Alito — aren’t going to sign any opinion that legalizes same-sex marriage in CA. The justices sympathetic to SSM have no reason to get the outcome they want by limiting standing rather than just ruling on the merits.

      • efgoldman

        ….rather than just ruling on the merits.
        What an odd concept for this particular court.

  • Johnny Sack

    On DOMA, Kennedy could basically copy paste his Romer opinion. Kennedy will strike down DOMA, because he knows the only reason he isn’t seen as an intellectual lightweight right wing hack is his two gay friendly opinions. If he goes back on Romer he’ll go the way of Scalia, whatever shred of credibility gone forever.

    Also-no way teh gays become a protected class under the Roberts Court (unless Obama replaces Scalia, that fuck will manage to cling on until a Republican comes into office).

    • Davis X. Machina

      Kennedy will strike down DOMA, because he knows the only reason he isn’t seen as an intellectual lightweight right wing hack is his two gay friendly opinions.

      Kennedy went over to the dark side in his PPACA decision ain’t coming back. He has new friends now, who really like him, and don’t say mean and hurtful things behind his back.

    • Joe

      the only reason he isn’t seen as an intellectual lightweight right wing hack is his two gay friendly opinions.

      Sheesh. Kennedy has been supportive of gay rights for around thirty years back to when he was a lower court judge. His statement Bowers was wrong when decided was in the spirit of his views before Bowers was even decided.

      Kennedy also the fifth vote in the Gitmo cases, various death penalty cases and school prayer. He has consistently (not just when corporate money is involved) be supportive of free speech, including virtual porn.

      Bork lost. It mattered.

      • Johnny Sack

        I never accused him of not supporting gay rights, I was talking specifically about his jurisprudence and two of his notable cases.

        And then, with all that, let’s look at what else we have: let’s see, who wrote the majority opinion in Citizens United? What other shameful votes does he have under his belt? Bush v. Gore? NFIB v. Sebelius? As Davis X. Machina mentioned, he’s gone over to the dark side plenty of times, I think I’m giving him enough credit, based on his history.

        • Joe

          he knows the only reason he isn’t seen as an intellectual lightweight right wing hack is his two gay friendly opinions.

          This “right wing hack” not only didn’t only have “two” opinions friendly on gay rights — you said it, own up to the implication that that’s all he did there — but (repeatedly as a fifth vote and/or author) joined in opinions against the death penalty, for free speech (not only CU), prison conditions in CA, limiting life imprisonment for teens, allowing Oregon to have an euthanasia law, against school prayer etc.

          But, you know, who cares? He is just a “right wing hack” saved by “two” gay friendly opinions. Why don’t the above matter? Oh, there’s Casey, even with its watered down nature.

          Bork lost. It mattered. Yes, I know a Reagan nominee is a conservative on various issues and supports some bad things. Over and over again, sanctimonious he might be, he has, at times as a fifth vote, did the right thing.

          • Johnny Sack

            And many times done the wrong. I admit I phrased it too harshly (right wing hack) and we could’ve done worse (Bork), but I don’t lose standing to complain about two of the worst decisions in my lifetime. He has inexcusable decisions under his belt. Or go ahead, bring up Bork again. I can’t criticize him because we could’ve gotten worse. Shut up, microcephalic.

            • Joe

              I think being called someone with “an abnormally small head and underdeveloped brain,” esp. when the person admitted being wrong on one of the major issues I had, is a sign to go.

  • jon

    I’m hoping they hold for gay marriage, on the basis of the evergreen Commerce Clause: to deny gay marriage would be an undue infringement upon the interstate trade in gifts, transportation, lodging, photos and video, flowers and hideous bridesmaid dresses.

    • L.M.

      (Scalia, J., concurring in judgment) (Proposition 8 preempted by Federal Arbitration Act)

      • Xenos

        LOL. Very droll.

    • jon

      I forgot the most important groups likely to file multiple amicus briefs: wedding planners, calligraphers, announcement page editors, wedding magazine trade associations, marriage counselors and divorce attorneys. We’ve got a growing industry to support here, people.

      • Hogan

        And the people who are even now pitching Queer Eye for the Bridezilla to Bravo.

        • MAJeff

          I think that already exists, but it’s called “Say Yes to the Dress.”

    • Davis X. Machina

      Objection, your honor, ‘hideous bridesmaids’ dresses’ assumes facts not in evidence, to wit, non-hideous bridesmaids’ dresses.

  • efgoldman

    I’m not a lawyer, etc…..
    Two questions about the DOMA case.
    1) Who’s going to argue in favor? The DOJ and the administration are on record as not doing so.
    2) It seems to me this might be a winner because it was presented as real *economic* harm, about $350k of an IRS bill, because the surviving spouse wasn’t a spouse under the statute.

    As for Prop 8: wasn’t the pro-Prop8 testimony basically laughed out of court? And was any of the opinion in the 9th circuit based on the reasoning “a right once given, cannot then be denied”?

    • Informant

      DOMA is being defended by the U.S. House of Representatives as an institution.

      • Johnny Sack

        You tell me it’s the institution, well, you know.

  • Steve H

    Why is it assumed that the 4 Dems will find a constitutional right of same-sex marriage? Is this based on any public pronouncements?

    • I don’t think that is assumed.

      I think it is assumed that the 4 Dems will find a reason to strike down the laws that are being challenged, but a reason short of finding a federal right to equal marriage.

      • Scott Lemieux

        I would guess that the 4 Dems will, if given the opportunity, argue for making sexual orientation a strict scrutiny category. RBG for sure, and I doubt she’d be alone.

    • Joe

      A ‘a constitutional right of same-sex marriage’ is not really needed. DOMA involves not denying benefits IF a state chooses to recognize SSM. The question isn’t if a state must. Prop 8 can be decided on narrow grounds too.

  • Do folks really think the standing issues aren’t serious? Someone on that Court seems to think they are. Here’s the text in the Prop 8 grant:

    Petition 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.

    I have never understood how people opposed to Prop 8 but have no interest in gay marriage have standing. If Rehnquist (unprincipled monster though he was) were on that Court, I have no doubt where he’d have seen the standing issue here. This just telegraphs to me that at least some of those folks are saying “this is how we are going to duck on Prop 8”.

    Then there’s this on DOMA:

    Petition for a writ of certiorari GRANTED. In addition the to 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.

    What interest does a House advisory group have here? I've spent less time contemplating standing from political branches than more mine-run standing questions (like the one presented by Prop 8) but this seems to be stretching it, again.

    If I had to predict, I'm guessing an opinion that there's no standing to decide either case. Yep, they'll say, big national issues, but we've got no way of looking at either one. Federal courts: Stay out of this gay marriage stuff!

    • MAJeff

      They aren’t people “opposed to Prop 8.” They are the sponsors of the initiative itself. They’re the folks who got the measure on the ballot to take away the right to marry.

      • Joe

        Yes. I think they should have standing. Not a big fan of the ballot process but if you are going to have it and something passes, SOMEONE should be able to defend it in court. And, the CA SC (see James E Powell above) determined state law does so hold.

        SCOTUSBlog says Ms. Windsor’s petition is not directly involved in the cases taken but she has one — you know, it is basically ultimately about her. It is downright inane to deny standing there.

        • MAJeff

          But the question isn’t whether Windsor has standing to challenge the law, it’s whether BLAG has standing to defend it when DOJ has refused to do so.

          • Joe

            Yes, the USSC asked that (and looking into it, BLAG very well might have a weak claim) and their own jurisdiction give the Administration agreed with the 2CA. But, ultimately, Windsor’s case is still there. It should be decided, somehow, on the merits now.

    • Glenn

      I think the rationale as to Prop 8 supporters is not that they personally have standing, it’s that CA has standing and, per the CA Supreme Court, the Prop 8 supporters have the right to press CA’s interest. Of course it is ultimately up to the Supreme Court to decide if that sort of representation is acceptable as a matter of Article III, but like Scott, I have a difficult time imagining them finding otherwise.

  • Manju

    I’s rather have the Pips hear this stuff.

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