Hollingsworth v. Perry

  • December 15, 2014

    by Nanya Springer

    Investigative journalist Jo Becker spent four years embedded with the plaintiffs’ litigation team in Hollingsworth v. Perry, also known as the Prop 8 case. After the Supreme Court ruled on the case, she published Forcing the Spring: Inside the Fight for Marriage Equality, which provides rare insight into the privileged strategy discussions and work product materials of the attorneys.

    In Lessons for Law Reform Litigators, Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law and Professional Lecturer in Law at George Washington University Law School, uses Becker’s account to extract lessons in strategy for attorneys who seek to institute social change through the courts.

    Morrison’s paper, published by The Green Bag, traces the evolution of the famous case, as told by Becker, and draws out pearls of wisdom as it goes. For example, after Prop 8 was struck down by the District Court, California’s governor and attorney general chose no longer to defend the discriminatory law. However, this created a problem for the Prop 8 plaintiffs who thought they could win at the Supreme Court. Absent an appeal from the state, and with no new same-sex marriages having taken place, the plaintiffs had a standing problem that threatened to impede the progression of the case through the courts and deny them the broad ruling they sought. The lesson?  Seemingly good news can be bad news for litigators seeking sweeping reforms to the law.

    Morrison, a co-faculty advisor of the ACS Student Chapter at GW Law, also discusses the importance of District Judge Vaughn Walker’s decision to hold a trial as opposed to resolving the case—in which no facts were disputed—through summary judgment. He explains that the trial not only allowed the plaintiffs to tell their personal stories, thereby educating the public and influencing public opinion, but also made it impossible for the defense to find an expert who was willing to testify in open court that same-sex marriage harms opposite-sex marriage.  The lesson?  While discovery can be used to expand upon the facts of a case, there is no substitute for the testimony of real, live witnesses.

    Morrison’s paper is not a book review, nor is it a law review article. Instead, Morrison, a co-founder and director for 25 years of the Public Citizen Litigation Group, uses the story of one of the greatest legal undertakings in recent history to provide tips and advice on litigation strategy.  For public interest attorneys, or anyone interested in taking on far-reaching public interest cases, it is worth a read.

  • September 18, 2014
    Guest Post

    by Adam Winkler, Professor Law, UCLA School of Law. This post is part of our 2014 Constitution Day symposium.

    In 1961, Yale Law School professor Alexander Bickel wrote a law review article extolling what he called the “passive virtues” of judicial decision-making. By this, Bickel meant that the Supreme Court might achieve better, more enduring results if instead of boldly asserting a constitutional vision the justices took small, narrow steps. He didn’t mean that the Court should stay away from controversial issues so much as lead the nation in a dialogue, venturing in on occasion to articulate important principles but allowing issues to percolate over time.

    In an era where the Supreme Court is known for its aggressive assertions of power, most notoriously in deciding a presidential election in Bush v. Gore, it may be hard to take seriously any notion of a passive or tentative Court. In recent years, some liberal scholars such as Cass Sunstein have promoted judicial minimalism, though mostly one suspects because of the conservative makeup of the Rehnquist and Roberts Courts. Yet if there is one area where the Court has seemed to follow Bickel’s lead, it is LGBT rights and, in particular, marriage equality.

    Consider that the Court has ruled on the constitutionality of laws discriminating or harming LGBT people in three major cases over the past twenty years: Romer v. Evans, striking down Colorado’s statewide ban on local anti-discrimination ordinances; Lawrence v. Texas, voiding bans on same-sex sexual relationships; and United States v. Windsor, invalidating the federal Defense of Marriage Act. These cases have been celebrated for expanding the constitutional promise of equal citizenship to LGBT people. And the justices have been criticized, too, for not going far enough. Romer refused to say that sexual orientation was a suspect classification triggering heightened scrutiny. Lawrence refused even to say that same-sex sexual activity was a fundamental right. Windsor was decided the same day as Hollingsworth v. Perry, where the Court used procedural issues to avoid ruling directly on the constitutionality of bans on same-sex marriage. 

    Such criticism is certainly appropriate given that the Court’s half-steps leave LGBT people in limbo. After Romer and Lawrence, federal courts continued to uphold other laws discriminating against LGBT people, such as bans on adoption. Windsor and Hollingsworth literally left LGBT people in loving relationships at the altar, still unable to marry in the majority of states. This state of affairs must be changed and soon. For many, rights delayed are rights denied.

  • June 27, 2013
    Guest Post

    by Deirdre M. Bowen, Associate Professor of Law, Seattle University School of Law

    Without a doubt, the Supreme Court’s ruling in United States v.Windsor No. 12-307 (June 26, 2013) offers immense hope for same-sex couples, at least for those who reside in states that allow same-sex couples to marry.

    The Supreme Court affirmed a Second Circuit opinion that determined Section 3 of the Defense of Marriage Act (“DOMA”), which defines marriage as the union of a man and a woman, is unconstitutional as applied to New York resident Edith Windsor, the widow and executor of her wife’s estate. What is remarkable, however, is how the Supreme Court essentially ignored the Second Circuit’s rationale and developed its own.

    The Second Circuit laid out a clear Equal Protection analysis of DOMA. In doing so, it bumped up the tier of scrutiny from rational basis, which the Southern District of New York Court applied, in favor of intermediate analysis, based on its finding that lesbians and gay men were a quasi-suspect class. Specifically, the Second Circuit found, after engaging in a four-part factor analysis, that gay people have been the target of discrimination and mistreatment in public and private spheres in the United States, and this triggered an intermediate level of scrutiny. The Second Circuit then evaluated the reasons that the Bipartisan Legal Advisory Group (“BLAG”) offered to determine whether these reasons were substantially related to an important government interest. In this task, the Second Circuit determined that BLAG had failed to demonstrate persuasive set of rationales.

  • June 26, 2013
    Guest Post

    by Suzanne Goldberg, Professor of Law at Columbia Law School. Professor Goldberg was counsel of record on an  amicus brief in support of the respondents in Hollingsworth v. Perry and was among the counsel on an amicus brief in support of the respondents in United States v. Windsor. This piece is a cross-post from SCOTUSblog.

    The Court’s decisions in Windsor and Perry – the first major gay rights rulings in a decade – are a one-two punch to the nation’s most prominent antigay laws.  Today, the Court has brought an end to the damage wrought by the federal Defense of Marriage Act on countless same-sex couples throughout the United States and left in place Proposition 8’s invalidation by the federal district court.

    Neither decision is surprising but both are gratifying.  And both reinforce the dramatic shift in the Court’s approach to gay rights – and to gay people.  Just over a generation ago, in the Court’s 1986 Bowers v. Hardwick ruling, the Court held that it was “at best facetious” that a gay person would have a constitutional right to sexual intimacy in his apartment.  Today, Justice Kennedy, in his Windsor opinion, writes that DOMA’s burden “demeans” same-sex couples and “humiliates tens of thousands of children now being raised by same-sex couples.”

    Put simply, it was almost unimaginable, when the gay rights movement took hold in the 1970s, or even as legal victories started to mount in the 1980s and 1990s, that the nation’s highest Court would find that a federal law unconstitutionally interfered with the “equal dignity of same-sex marriages.”

    Yet reaching this conclusion was not a constitutional stretch.  Relying on a forty-year old opinion striking down Congress’s discrimination against hippies (Department of Agriculture v. Moreno), the Court had little difficulty finding illegitimate stigma in DOMA’s “unusual deviation from the usual tradition” of the federal government accepting state definitions of marriage, as it struck down DOMA’s section 3, which prohibited the federal government from recognizing same-sex couples’ marriages.

    Ironically, the very first time the Court recognized that this equality guarantee protected gay people came in 1996 (Romer v. Evans, which struck down Colorado’s antigay amendment) – the same year of DOMA’s passage.  In essence, then, even when DOMA first arrived, the Court’s equality jurisprudence contained the seeds of its demise.

  • June 26, 2013

    by Jeremy Leaming

    A majority of the U.S. Supreme Court found a way to come together to advance equality. It comes on the ten-year anniversary of the high court’s landmark Lawrence v. Texas decision that invalidated state anti-sodomy laws targeting gay people. 

    In U.S. v. Windsor, the majority led by Justice Anthony Kennedy and joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, concluded that the federal government’s refusal to recognize legally married same-sex couples is unconstitutional.

    In a 5-4 opinion in Hollingsworth v. Perry, the court dismissed on procedural grounds the challenge to court rulings that invalidated California's Proposition 8, meaning that couples in the Golden State can resume obtaining marriage licenses. The high court majority in Perry was made up of Chief Justice John Roberts Jr. and Justices Ginsburg, Breyer, Antonin Scalia and Kagan. The majority found that the supporters of Proposition 8, which yanked the right to marry from same-sex couples in California, did not have standing to challenge the law. As David Savage reports for the Los Angeles Times, state officials won’t defend the law, which they view as a violation of equal protection, so it essentially clears “the way … for same-sex marriages to resume in California.”

    But both actions, however, follow the conservative majority’s decision to gut the Voting Rights Act, and a ruling potentially limiting the use of race-conscious admissions policies in higher education. Moreover, the high court also issued opinions this week making it significantly more difficult for workers to sue employers over harassment allegations. So while today’s demise of DOMA is certainly news worthy of great celebration, it hardly changes the fact that the Roberts Court is bent on advancing a right-wing, pro-corporate agenda.

    In the DOMA case the majority did not find that there is constitutional right to same-sex marriage. The majority opinion was narrow, striking a provision of DOMA that it saw as infringing on due process and equality promises of the federal government. Noting the states’ historic and “significant responsibilities” for defining marriage, Kennedy said DOMA “departs” from the tradition with its sweeping scope. Citing Romer v. Evans, Kennedy wrote that discriminations “‘of an usual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision.’”  In this instance DOMA did not survive that type of scrutiny.

    In this instance DOMA was denying the dignity of a same-sex marriage that had been recognized by the state of New York. The opinion authored by Kennedy included lofty language of the Fifth Amendment’s due process clause and DOMA’s purpose to deprive an “unpopular group” of liberty. Not surprisingly Kennedy’s opinion provoked a sharp dissent from Justice Scalia, who joined yesterday’s majority opinion usurping Congress’ constitutional authority to enforce the promises of the 14th and 15th Amendments through “appropriate legislation.”

    “DOMA seeks to injure the very class New York seeks to protect,” Kennedy wrote. “By doing so it violates basic due process and equal protection principles applicable to the Federal Government.” Citing precedent, he continued, that the “Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”