Supreme Court

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].’”

by Jeremy Leaming

Even before today’s oral argument in Hollingsworth v. Perry, some pundits urged the Supreme Court to go slow on same-sex marriage, essentially arguing marriage should be for the states to hash out and declaring that a Supreme Court decision that all states must recognize same-sex marriage could result in a backlash, thereby setting back efforts to advance equality for the LGBT community.

After reading the oral argument transcript, it seems that may be what happens since it did not appear a majority of justices were anywhere close to declaring that gay couples have a constitutional right to wed. That’s disconcerting since national polls and polls in California, birth of Proposition 8, reveal strong support for same-sex marriage. That’s not terribly surprising since marriage is about committed couples taking responsibility for each other and why should government officials want to discourage such responsibility.

Instead, the high court may be ready to dismiss the Prop 8 case on a technicality for it appeared that the high court’s left-of-center justices and possibly Chief Justice John Roberts and Justice Anthony Kennedy were not convinced that a few proponents of California’s anti-gay law are the proper people to be before the court.

Before Charles J. Cooper, attorney for the proponents of Prop 8, could delve into the substantive argument against same-sex marriage, he was asked by Chief Justice John Roberts, Jr. to address the “standing issue.”

Cooper said the proponents of Prop 8 “have standing to defend the measure before this Court as representatives of the people and the State of California to defend the validity of a measure that they brought forward.” (As noted in this interview with Columbia Law School Professor Suzanne Goldberg it is a bit odd for the Prop 8 proponents to insist they are representing the interests of the state of California, for the state’s governor and attorney general have both said the law should be invalidated as unconstitutional.)

Justice Stephen Breyer pointed to a friend-of-the-court brief filed on behalf of former U.S. Solicitor General Walter Dellinger saying it made a “strong argument” that the Prop 8 proponents “are really no more than a group of five people who feel really strongly” that they should vindicate the law.

The Dellinger brief, in part, argues that the proponents of Prop 8 have “noting more than a generalized interest in” enforcement of the law.  Citing high court precedent, the brief continues, that “the generalized interest a party shares with all members of the public in proper enforcement of the laws is not sufficient” to establish standing.

Justice Sonia Sotomayor noted that the while the California Attorney General has “no personal interest” in defending Prop 8, she does have “a fiduciary obligation,” to which Cooper agreed.

The standing question, as the Dellinger brief persuasively argues, could prove to be the winning argument, giving the Court a way to avoid tackling the substantive question of whether gay couples have a constitutional right to wed.

The substantive argument from Cooper and many of the groups lodging friend-of-the-court briefs centered on an alleged overriding governmental interest in marriage as a tool primarily for promoting procreation.

Cooper said that Prop 8 proponents are arguing that the States' interest in marraige is about promoting procreation. He told Justice Elena Kagan that the “essential thrust of our position” is that the states have a really strong interest in regulating procreation.

Justice Stephen Breyer asked Cooper, “What precisely is the way in which allowing gay couples to marry would interfere with the vision of marriage as procreation of children that allowing sterile couples of different sexes to marry would not? I mean there are lots of people who get married who can’t have children.”