This is a guest post from Wayne State Law Professor Robert Sedler who, from time to time, breaks down the constitutional aspects of some of the weighty cases we follow over here at the Law Blogger.

The United States Supreme Court is considering two cases presenting constitutional challenges to bans on same sex marriage. Decisions in these cases are expected in the next few weeks as the High Court concludes the current term. 

In both cases there are procedural issues relating to standing - a matter that goes to the constitutional jurisdiction of a federal court to hear a case or an appeal.  Depending on how the Court resolves the procedural issues, it may not reach the merits in either or both cases.

In hearing the oral arguments in both cases, the Court separated the argument on the standing issue from the argument on the merits. Moreover, neither case directly presents the question of whether a ban on same-sex marriage is unconstitutional across the board.  If the Court limits itself to deciding the precise constitutional issues presented in both cases, it will not have definitively resolved the question of whether a ban on same sex marriage is unconstitutional.

In Hollingsworth v Perry, 671 F.3d 1052 (9th Cir. 2012), the Ninth Circuit Court of Appeals held that where the California Constitution was interpreted by the Supreme Court of California as guaranteeing the right to marry to opposite-sex and same-sex couples alike, and the voters of California then adopted Proposition 8, which amended the California Constitution to eliminate the right of same sex couples to marry, that amendment violated the Fourteenth Amendment’s equal protection clause. This was because the Court concluded that the amendment served no purpose and had no effect other than to lessen the status and dignity of gay and lesbian persons in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

In this case, after the District Court ruled in favor of the plaintiffs challenging the ban on same sex marriage, the Governor and Attorney-General refused to appeal. Under California law, the official sponsors of the ban were authorized to defend it in court, and the Ninth Circuit held that the official sponsors of the ban had standing to take the appeal.

The SCOTUS must first decide whether the official sponsors of the ban have standing to take the appeal. If the Supreme Court concludes that they do not have standing to take the appeal, the result will be that the decision of the District Court holding the ban unconstitutional stands, and same sex marriage will now be legal in California.

If the Court concludes that they do have standing to take the appeal, the Court will reach the merits.  It could affirm the decision of the Ninth Circuit on the narrow ground of that decision, relating to the taking away of the right to same sex marriage by the amendment to the state constitution. That decision would apply only to California. Or it could accept the argument of the official sponsors that the voters of California did not deny equal protection to same sex couples when it made the determination to preserve traditional marriage between a man and a woman as the sole basis for marriage in the state. Or the Court could render a decision going beyond the issue presented in that case and hold that the equal protection clause prohibits the state from limiting the right to marry to opposite sex couples and denying it to same sex couples.

In United States v Windsor, 699 F.3d 169 (2d Cir. 2012), the Second Circuit Court of Appeals held unconstitutional the federal Defense of Marriage Act (DOMA), 1 U.S.C. sec. 7, which defines marriage as “only a legal union between one man and one woman,” insofar as it was applied to deny recognition for federal tax purposes to a same sex marriage that was legal under the law of the state where the same sex couple resides.

In rendering its decision, the Second Circuit held that discrimination on the basis of sexual orientation was subject to intermediate scrutiny under the “important and substantial” relationship test, and it rejected all the justifications that were asserted in defense of a ban on same sex marriage. It also noted that Congress and the Court has historically deferred to state domestic relations law.

The case presented two interrelated procedural issues. The suit was brought by a New York woman who was denied a marital tax from the federal estate tax when her spouse denied, even though the validity of their marriage was recognized by New York, the state where the couple resided. The United States defended the case in the District Court up to a point, but then declined to defend it further.

Members of the House of Representatives, referred to as the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) intervened as a party defendant to defend DOMA. The United States switched sides to advocate that the statute be ruled unconstitutional. At the same time, the United States took the position that it would continue to enforce DOMA unless and until a federal court held that it was unconstitutional.

 

When the case came before the SCOTUS, the Court appointed an amicus curiae to argue that the Court could not hear the appeal, because there was no case or controversy within the constitutional jurisdiction of the federal courts. The United States argued that the Court should hear the appeal and hold that DOMA was unconstitutional as applied to deny recognition to a marriage that was legal under the law of the state where the couple resided, and further argued that BLAG did not have standing, because it was the responsibility of the executive branch alone to defend the constitutionality of a federal law. BLAG argued that the House of Representatives had standing to defend the constitutionality of a federal law when the executive branch agreed with the plaintiff that the law is unconstitutional.

SCOTUS must first decide whether there is a case or controversy, since the United States, represented by the Attorney-General refused to defend the suit. If the Supreme Court dismisses the appeal on the ground that there is no case or controversy, presumably the District Court would then enter a judgment for the plaintiff, since the United States has refused to defend the suit. The constitutional question would remain unresolved. The position of the United States on the appeal - that the Court should hear the appeal, but that BLAG does not have standing to defend DOMA - would require the Court to appoint an amicus curiae to defend the constitutionality of DOMA. If the Court decides to hear the appeal and further decides that BLAG has standing to defend DOMA, then the case would be ready for a determination on the merits.

The Court could hold that DOMA is unconstitutional as applied to deny federal recognition to a same sex marriage that is legal under the law of the state where the couple resided on the ground that the refusal of the federal government to recognize such a marriage would violate the state sovereignty guarantee of the Tenth Amendment.  State sovereignty, it may be noted, was the basis for that part of the Sebelius decision, holding that Congress could not compel the states to agree to the Medicaid expansion of the ACA or lose all Medicaid funding.

At the oral argument before SCOTUS, BLAG argued that federal law could define marriage for purposes of federal law differently from the way a state defined marriage for purposes of state law, and this issue took up most of BLAG’s argument.  The issue also came up at various times in the argument of the United States and of the lawyer for the plaintiff.

In a slight variation of the state sovereignty rationale, the Court could hold that it is violative of equal protection for Congress to discriminate against marriages that are legal in the state where the parties reside. This is the precise issue involved in Windsor, and the decision need go no further than that.

On the other hand, the Court could reject the federalism argument, reach the equal protection issue, (5th Amendment equal protection, because DOMA is a federal law), and hold that Congress did not deny equal protection to same sex couples when it made the determination to preserve traditional marriage between a man and a woman as the sole basis for marriage under federal law.

The possible SCOTUS outcomes may be summarized as follows:

     1) The Court resolves both cases on procedural grounds and does not hear the appeals. Same-sex    marriage is now legal in California, and Ms.Windsor gets a refund of federal estate tax.

     2)  The Court could render a narrow constitutional decision favorable to same-sex marriage in both cases. In Perry it could hold that amending the state constitution to eliminate the right of same sex couples to marry violated equal protection, and in Windsor, it could hold that the application of DOMA to deny federal recognition to a same sex marriage that is valid under the law of the state where the parties reside violates 10th Amendment state sovereignty and/or equal protection.

     3)  The Court could resolve one case on a procedural ground and the in the other case render a constitutional decision favorable to same sex marriage.

     4)  The Court could hold that a denial of the right to marry to same sex couples violates equal protection, and so protect the right to same sex marriage throughout the United States.

     5)  The Court could hold that the denial of the right to marry to same sex couples does not violate equal protection, so that the issue is removed from the constitutional equation, and whether or not same sex couples will be able to marry will depend on the law of each state.

With this road map from Professor Sedler, we here at the Law Blogger will await this momentous decision.  Last June it was Obamacare; this June it is same-sex marriage.

October 2013 Post Script: For readers that are interested in a personal portrait of one of the litigants behind these consolidated cases, take a look at this piece on Edith Windsor from The New Yorker.  Windsor was the litigant that successfully challenged DOMA.  The New Yorker piece details the tortured path her case took to get to the SCOTUS.

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