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
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
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
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.
Labels: Hollingsworth v Perry, Law Professor Robert Sedler, same-sex marriage, SCOTUS