Private: Tribe Talk

by Dan Urman, Director of Northeastern University’s Doctorate in Law and Policy. Urman is also a member of the ACS Boston Steering Committee.

On Dec. 12, as part of the ACS Boston Lawyer Chapter’s “Legal Legends in the Law” series, Laurence Tribe reflected on his remarkable career as a constitutional law professor and Supreme Court litigator.  Tribe, Carl Loeb University Professor at Harvard University, began by providing an overview of the Supreme Court’s decision to hear two cases related to marriage equality: Windsor v. U.S. and Hollingsworth v. Perry. Disagreeing with popular news reports already predicting the outcome, Tribe argued that more than one justice is uncertain about how he or she will vote.

Tribe (pictured) has decades of experience writing, teaching, and litigating constitutional rights for gay and lesbian Americans, often at his professional peril. He referenced his discussion of sexual orientation in his 1978 Treatise, American Constitutional Law, taking a stance well outside of the legal and social “mainstream.”  Tribe argued that laws discriminating against individuals based on sexual orientation were “indistinguishable from laws discriminating against individuals based on their race or gender.”  Many friends and colleagues advised him against taking such a position publicly, because it could cost him a position on the U.S. Supreme Court. These warnings resurfaced when he prepared to testify against Judge Robert Bork’s 1987 Supreme Court nomination. Senator Alan Simpson (R-Wyo.) told Professor Tribe that it would be great to see “both of them (Bork and Tribe) on the Court,” and if Tribe testified against Bork, he would be “burning a bridge.”  Twenty-five years later, Tribe said that if serving on the Court meant holding back his actual views, it was a bridge he did not want to cross. 

In 1986, Tribe represented Michael Hardwick, a Georgia man charged with sodomy under the state’s criminal prohibition of sodomy, in front of the Supreme Court. Tribe recalled being told that he had “no chance to win,” because the criminal law did not even distinguish based on gender.  Rather, it criminalized sodomy in all circumstances.  Although the Supreme Court ruled 5-4 that the Constitution did not “confer a fundamental right upon homosexuals to engage in sodomy,” Tribe imagined that it would only be a matter of decades before a future Court overruled the case. In fact, Justice Lewis Powell, the tiebreaking vote in the case, later admitted that he voted the wrong way.

Seventeen years later, in Lawrence v. Texas, the Supreme Court overruled Bowers, just as Tribe predicted. He felt that “laws outlawing particular anatomical combinations had no place in America,” and made that argument in Lawrence through his primary brief for the American Civil Liberties Union. In his brief, Tribe argued that the U.S. Constitution guarantees a level of dignity and privacy for consensual, interpersonal relationships. In the wake of Lawrence, there is an open question at where government draws the line when it comes to private relationships between same sex couples. Justice Anthony Kennedy, in his majority Lawrence opinion, stated that:

The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” clearly referring to marriage.

Following this discussion of Lawrence and the open question of its effect on Same-Sex marriage,Tribe examined the substantive and procedural issues in each the two cases from this term.

Windsor v. United States

First, Windsor v. United States involves a challenge to Section 3 of the Defense of Marriage Act (“DOMA”), which Congress passed and President Clinton signed in 1996. Section 3 states that for federal purposes, marriage means a man and a woman. This affects more than 1,100 federal rights (including survivor benefits, the issue in Windsor), and Tribe noted that DOMA represented a dramatic departure from traditional federal deference to state definitions of marriage. In Windsor, the U.S. Court of Appeals for the Second Circuit applied intermediate scrutiny to DOMA and declared Section 3 to be unconstitutional. Intermediate scrutiny means that the court reviewed the law targeting gays and lesbians under a more rigorous (less deferential) standard. The Obama administration, while it continues to enforce DOMA, agreed in Feb. 2011 that laws like DOMA should be reviewed under intermediate scrutiny. After concluding that DOMA would fail under intermediate scrutiny in February 2011, the administration allowed Congress to appoint counsel to defend the statute through the Bipartisan Legal Advisory Group (“BLAG”). 

In agreeing to hear the case, the Supreme Court also asked the Windsor parties to address whether BLAG has standing. Standing means a plaintiff suffered a specific harm (not a generalized grievance), the harm was caused by something the defendant did, and courts can address the problem through a ruling. They also appointed an expert on federal jurisdiction, Harvard Law Professor Vicki Jackson, to argue that the Court does not have jurisdiction and BLAG has no standing. Tribe disagreed with this position, arguing that there is a genuine case or controversy because the executive is required to enforce DOMA.  DOMA means that people like Edith Windsor are denied rights, so a genuine controversy over the law exists. Tribe also noted that when the Supreme Court is unsure about the proper party to defend a side, they can appoint an amicus or special counsel, as seen in the Affordable Care Act cases last term. 

Hollingsworth v. Perry

In 2008, California voters passed Proposition 8, which amended the California Constitution to deprive same sex couples the symbolic right to marry (all other spousal benefits would remain the same). Months earlier, the California Supreme Court ruled that restricting marriage to opposite sex couples violated the state’s constitution. In the wake of the election, former Bush v. Gore adversaries David Boies and Ted Olson initiated a lawsuit challenging the constitutionality of Proposition 8 in federal district court. Attorney General (now Governor) Jerry Brown refused to defend Proposition 8, and a group of the proposition’s proponents including Chuck Cooper defended the statute at trial.  At the end of the bench (non-jury) trial, U.S. District Court Judge Vaughn Walker declared Proposition 8 unconstitutional under the 14thAmendment’s Due Process and Equal Protection clauses. The parties defending Proposition 8 appealed to the U.S. Court of Appeals for the Ninth Circuit, but Governor Jerry Brown and Attorney General Kamala Harris refused to defend and enforce Proposition 8. That raised the question of whether a federal court could adjudicate the case. Once the Calif. Supreme Court ruled that Proposition 8 proponents had standing, the Ninth Circuit reached the merits. On the merits, the Ninth Circuit panel ruled, in an opinion authored by Judge Stephen Reinhardt, that the only explanation for Proposition 8 was hostility to gay rights. 

States’ Rights

Professor Tribe noted that the DOMA and Proposition 8 cases present two directions for a “states’ rights” argument. In the DOMA context, the Supreme Court could strike down Section 3 of the statute and claim that in doing so, it was deferring to state definitions of marriage. In the Proposition 8 context, however, overruling the CA voters would send a different message regarding respect for state decisions. Professor Tribe noted the idea of a “one way ratchet,” where rights can only expand, and never contract, but that runs counter to the idea of state experimentation as laboratories of democracy. 

Tribe concluded his remarks with a reflection on how much society had changed since he argued Bowers v. Hardwick in 1986. All eyes will be on Justice Kennedy, the author of Romer v. Evans (on which Professor Tribe wrote an influential amicus brief for himself and a few other law professors) and Lawrence v. Texas. Tribe remains hopeful that the Court will rule for same sex marriage in Windsor and Perry, and in doing so, remains on the right side of history.

*Professor Urman teaches Political Science and Law & Policy to undergraduate and graduate students. Northeastern students have nominated Dan for a University-wide excellence in teaching award each year of eligibility. He has worked on several political campaigns, including the past four Democratic National Conventions.

Before he came to Northeastern, Dan practiced law at a large law firm and served as an Assistant District Attorney. He studied History, Political Science and Public Policy at UCLA, International Relations at Oxford University, and received his JD from Harvard Law School.

Constitutional Interpretation, Equality and Liberty, LGBTQ Equality, Supreme Court