Hollingsworth v. Perry

by Holning Lau, Associate Professor of Law, University of North Carolina School of Law

In my home state of North Carolina -- the most recent and probably last state to amend its constitution to ban same-sex marriage -- I have been fielding lots of questions from local couples wondering what impact, if any, the Supreme Court’s pending marriage cases will have here. The cases arose in California and New York. How might litigation that started so far away change things in our neck of the woods?

The cases before the Supreme Court -- Hollingsworth v. Perry and United States v. Windsor -- are unlikely to have any immediate legal impact on same-sex couples in places like North Carolina. With that said, the cases can accelerate change in our part of the country, and they have already given us a lot to celebrate. In this post, I will use North Carolina as an example to elaborate on these points, but my underlying analysis can be applied to any one of the many states that currently, like North Carolina, offer no legal recognition to same-sex relationships.

Immediate legal impact

Let’s start with why the two cases probably won’t directly or immediately affect legal rights in North Carolina. Hollingsworth is the case about Prop 8, the ballot measure banning same-sex marriage in California. The case concerns whether a state can deny same-sex couples the right to marry. The Court could take Hollingsworth as an opportunity to declare that no state, including North Carolina, is permitted to deprive same-sex couples of that right. Indeed, I helped to prepare an amicus brief that supports that conclusion and I certainly welcome it. Conventional wisdom, however, is that the Court won’t make such a bold move. Some supporters of marriage equality counsel against a bold move, fearing the backlash that it would foment.

Based on last week’s oral arguments, I suspect most of the justices are struggling to choose between dismissing the case on procedural grounds and striking down Prop 8 in a way that minimizes spillover effects to other states. I doubt that a majority of the justices will vote to uphold Prop 8.

Dismissing the case on procedural grounds (discussed more fully here) would allow the Court to avoid having to either strike down or uphold Prop 8. It would simply be saying that, for technical reasons, the case is not properly before the Supreme Court. If the Court adopts this reasoning, Prop 8 would be unconstitutional because the California couples prevailed in lower court. However, because the Supreme Court itself would not be saying anything about same-sex marriage, states beyond California would remain unaffected.

by Jeremy Leaming

As in Hollingsworth v. Perry, the Proposition 8 case, the U.S. Supreme Court justices in today’s consideration of the so-called Defense of Marriage Act dwelled on jurisdictional questions, before discussing the core constitutional concerns.

But a reading of the oral argument transcript in U.S. v. Windsor suggests a majority of justices may be ready to invalidate DOMA, but on narrow grounds, and likely not with a declaration that laws classifying lesbians and gay men for unequal treatment should be subjected to heightened scrutiny. Instead if the justices strike DOMA – and SCOTUSblog’s Lyle Denniston suggests that may be what happens – it likely will be on federalism grounds – that is the law encroaches on the states’ rights to regulate marriage.  

ACS President Caroline Fredrickson in a statement following oral argument said, “The federal government has a duty to protect Constitutional principles and values. The so-called Defense of Marriage Act, however, is an egregious affront to the Constitution’s guarantee of equal protection under the law. DOMA walls off lesbians and gay men from more than 1,000 federal government benefits, protections and rights. There is no rational reason for this law. The Supreme Court should reject it and establish a more rigorous test for similar laws.”

Before moving to the core of the case – a constitutional challenge to DOMA – several of the justices pelted lawyers with questions about whether the case should even be before the justices. (The Obama administration has stopped defending DOMA, calling it unconstitutional. But when the U.S. Court of Appeals for the Second Circuit ruled last year that DOMA’s cramped definition of marriage was unconstitutional, the administration appealed the opinion to the Supreme Court, where it argued against the law.) During oral argument, Chief Justice John Roberts Jr. took a shot at the administration’s handling of the case, saying that if the president thinks the law is unconstitutional then why doesn’t he “have the courage of his convictions" and not enforce the law, instead of saying, "'Oh, we'll wait till the Supreme Court tells us we have no choice.'"

After getting through the mind-numbing back-and-forth on standing questions, the justices turned to the constitutionality of DOMA, and it appeared that a majority was leaning toward killing it. Lawyers representing Edith S. Windsor the woman challenging DOMA, argued in their merits brief before the Supreme Court that laws like DOMA, which target lesbians and gay men for unequal treatment when challenged should be subjected to a heightened scrutiny. “This Court should apply heightened scrutiny to DOMA because it discriminates on the basis of sexual orientation,” the brief states. “Under heightened scrutiny, the federal government must at the very least show that the classification is ‘substantially related to the achievement of [important government objectives].’”