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Archives – March, 2013

Answering some popular questions about yesterday’s Supreme Court arguments on Prop 8

By Scottie Thomaston

Today, the Supreme Court is hearing Edith Windsor’s challenge to Section 3 of the Defense of Marriage Act. Jacob is in the courtroom and will have first impressions of the hearings after they conclude – today’s proceedings are an hour and fifty minutes long, and may actually go on for a bit longer, since no other case is scheduled for the day.

But I thought I would address some frequent questions we’ve received on yesterday’s hearing in the Prop 8 case.

If the Court says that Prop 8 proponents lacked Article III standing to appeal the case, would same-sex marriage return to California?

It’s a bit of a complicated mess. If the Court dismisses the petition as improvidently granted because the proponents lacked Article III standing to appeal, that would mean the Supreme Court nor the Ninth Circuit had authority to hear the case. But there is no issue regarding standing at the district court level – everyone in district court was a proper party and there was a “case or controversy” that Judge Walker’s decision resolved.

But there is a question over the scope of Judge Walker’s injunction. Proponents argue that it can only apply to the two couples who actually challenged Prop 8 in this particular case, but the Olson/Boies team say that the clear wording of the injunction means it should apply to all of California. And during oral arguments at the Ninth Circuit Court of Appeals, David Boies suggested that if the injunction were held to only apply to the two couples, there would likely be further litigation in an attempt to ensure uniform application of same-sex marriage across the entire state.

But immediately after the Court denies standing, the Ninth Circuit will issue its mandate.

How much time was spend talking about the jurisdictional issues versus the merits issues in the Prop 8 hearing yesterday?

Chief Justice Roberts deliberately asked all parties to start with the jurisdictional and standing issues rather than starting with the merits. So for all parties to the case, their initial time was spent on the issue of standing. This was true even for the Solicitor General, who appeared as amicus curiae (“friend of the court”) after filing a brief which only addressed the merits of Prop 8, not the issue of Article III standing.

From there, the Justices spent time on standing before Chief Justice Roberts directed them to discuss the merits. From my perspective, reading the transcript (I was unable to get into the arguments) it seemed that there was a fair amount of time spent on each issue, and it seemed that Chief Justice Roberts was very deliberate in directing everyone to speak on certain issues at certain times. I would guess they spent more time on the merits and less on standing, but there didn’t seem to be a significant gap, at least to me.

Could we get an early decision if they rule on standing?

Yes. The Court could dismiss the petition as improvidently granted, and a “DIG”, as it is called, is only a one-line “opinion.” In some cases, petitions are dismissed as improvidently granted for lack of standing in as little as a week, and sometimes it’s longer. So it is possible we could see an early, short decision dismissing the petition. It’s also possible the Justices may feel like they need to write an actual opinion on the Article III issues in this case, as they’ve never definitively ruled that ballot proponents have (or lack) federal Article III standing.

Why was the issue of “putting our civil rights up to a popular vote” not addressed?

The point sort of was, and sort of wasn’t, addressed. No one asked directly whether it’s okay to put rights up for a vote, but this was an equal protection challenge and there was not much focus on due process “fundamental rights”, so from my read of the transcript, discussions on this point tended to focus on Justice Scalia’s questions about “when it became illegal” to ban same-sex marriage, in other words, if it is a right, when did that happen? (As Mr. Olson adeptly pointed out, this is not a typical inquiry in these cases, so it seemed a bit of a straw man argument.)

It was my impression that if the Court had focused more on whether marriage is a fundamental right and less on whether the Ninth Circuit’s rationale was valid or “odd” (as Justice Kennedy said) then some Justices would have discussed why it is that the right is voted on through state ballot initiatives. Obviously, in the briefs in this case, Olson and Boies have pointed out that gays and lesbians have faced ballot initiatives more than any other group in American history.

What is the schedule for today, Wednesday, March 27?

Arguments in United States v. Windsor, the DOMA case, began at 10AM Eastern time. Today’s arguments are one hour and fifty minutes, because the parties were asked to brief and argue whether the Bipartisan Legal Advisory Group (BLAG, defending DOMA for House Republicans) has Article III standing, and whether the Justice Department’s agreement with Edith Windsor that Section 3 of DOMA is unconstitutional means the Court should not have granted their petition because they lack jurisdiction over it. The Court appointed an outside attorney, Victoria C. Jackson, to argue that the Court lacks jurisdiction and BLAG lacks standing. And the Solicitor General and BLAG’s lawyer, Paul Clement, will argue the opposite. Edith Windsor’s lawyer, Roberta Kaplan, did not get time to argue on standing and jurisdiction, but was, of course, given time to argue on the merits.

Jacob will have more when he leaves the Court today.

1 Comment March 27, 2013

View from the press room about an hour before DOMA oral arguments

By Jacob Combs

I’m writing this from the press room inside the Supreme Court a little more than an hour before oral arguments will begin in Edie Windsor’s challenge of Section 3 of the Defense of Marriage Act.  It’s still busy here today with many reporters milling around (I’m writing this standing up, with my laptop perched on a windowsill!), but it is markedly less frenetic today than yesterday.  The view from outside the Court was similar–yesterday, the sidewalk in front of the courthouse and across the street were thronged with demonstrators.  There are still a lot of people out there, but less so than yesterday.

But that doesn’t mean today’s case is any less important than the Prop 8 case!  Today’s hearing will be twice as long as yesterday’s, with the first fifty minutes devoted to questions of jurisdiction (whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing to defend DOMA and whether the Supreme Court has jurisdiction to hear the Windsor case when Edie Windsor and the federal government both agree that DOMA is unconstitutional).  The second half of the arguments will consist of an hour of discussion of the case on the merits.

Yesterday’s hearing was very wonky and procedurally oriented: the Justices spent a significant amount of time talking about issues of standing, and even once we got to the merits, we stayed in the weeds of legalese.  What surprised me yesterday was that there was very little discussion of what level of scrutiny should be applied to laws that affect gays and lesbians: whether they should be viewed under the more deferential rational basis standard or the more searching heightened scrutiny standards.  Part of this issue has to do with whether or not gays and lesbians are a ‘suspect class’: one based upon an immutable characteristic that has suffered discrimination and the whims of majoritarian opinion.

The relative lack of scrutiny questions yesterday could well be due to the fact that the Court knows it will have to address scrutiny during today’s arguments.  In fact, the fate of DOMA may rest entirely on the level of scrutiny under which it is reviewed, since the federal government and BLAG both argue it can survive rational basis scrutiny.  (Windsor argues it must fail any level of scrutiny, the federal government believes it fails heightened scrutiny, and BLAG says the law can survive any level of scrutiny.)

We apologize for the relative scarcity of posts yesterday–it was a complicated day in terms of trying to get into the Court.  It looks like we have a better shot of getting Scottie and Adam in today so that we’ll have three sets of eyes and ears on today’s arguments.  If they get in, we’ll all be under radio silence during arguments until noon or 12:30 Eastern.  After that, we’ll start tweeting our initial reactions (on our personal handles and at @equalityontrial) and we’ll have a shorter first impressions post up within the hour after arguments end.  We’ll then have several more in depth pieces later today focusing on specific aspects of today’s questions.

Here’s to day two being as exciting as day one!


March 27, 2013

Prop 8 at the Supreme Court: what kind of ruling can we expect?

By Jacob Combs

There is no way to open a post like this than with a big, big caveat: it is always unwise to read too much into oral arguments at the Supreme Court.  The Justices ask all kinds of questions as they gather information, debate ideas and plumb the weaknesses in both sides’ arguments on their way to conferring as a group and coming to a majority decision.  As I walked out of the press gallery and down towards the street, I overheard two reporters discussing their reactions.  At one point, one of them said something to the effect of, if you want to be fooled, take the Justices’ questions at face value.

Having said that, there’s already a bit of a conventional wisdom beginning to crystallize about what kind of a ruling we could expect by the end of June.  The definite consensus: don’t expect marriage equality to be a nationwide right this summer.  Also unlikely: a decision along the lines of the argument laid out both in briefs and oral arguments by Solicitor General Donald Verrilli, Jr. that the Court should restore equal marriage rights to California and also extend them to the other seven (soon to be eight) states with civil union or domestic partnership laws.

Where does that leave Prop 8?  The four more liberal Justices on the Court expressed deep skepticism for Charles Cooper’s arguments that Prop 8 could be defended as a rational governmental action, especially in light of California’s expansive quasi-marriage rights for same-sex couples.  The Court’s four conservative members (assuming Justice Thomas’s silence implies agreement with his right-leaning colleagues) did not appear to be anywhere near signing on to a legal opinion that would provide expanded marriage rights for same-sex couples in any state, California or otherwise.

And then there was Kennedy, the eternal swing vote, who admitted at one point during arguments that he is “wrestl[ing]” with the issue of marriage equality, especially whether such rights should be considered a “gender-based classification.”  (Most courts who have considered this issue have decided that marriage equality bans classify on the basis of sexual orientation and not sex.  But gender-based distinctions are already considered under heightened scrutiny, so Justice Kennedy may be exploring the many options available to him in regard to Prop 8 under established equal protection law as opposed to developing a new test for sexual orientation.)  Kennedy asked Cooper point blank at one point if he was conceding that he could point to any specific harms that would arise from allowing same-sex couples to marry.  Cooper couldn’t answer.

On the other hand, though, Justice Kennedy did say that the Court would be entering “uncharted waters” if it struck down Prop 8.  Ted Olson responded that the Court did exactly that when it ruled in 1967 that bans on interracial marriages were unconstitutional in the Loving v. Virginia case.  But, as Kennedy correctly pointed out, interracial marriage had been established in countries with common law before 1967.  Marriage equality, he said, is still new.

Perhaps most importantly, Kennedy did not seem persuaded at all by the Ninth Circuit’s California-specific ruling–a ruling that was likely written for his eyes and was based in large part on his seminal 1996 gay rights decision in Romer v. Evans.  Kennedy called the Ninth Circuit’s opinion “odd,” and the Justices as a whole seemed much more persuaded that whatever legal reasoning was adopted by the Court should be effective nationwide.

If Kennedy does end up becoming the swing vote (and writing the eventual opinion on Prop 8), he will likely continue to wrestle with his feeling that marriage equality bans hurt gays and lesbians–and their families–and his discomfort that the Court might make a policy decision for states without marriage equality in light of what he characterized today in court as early, inconclusive social science data about a practice that is still a little less than a decade old in the U.S.

That could mean Kennedy will end up crafting an opinion that finds a way to avoid the merits of Prop 8’s constitutionality.  He could do that by ruling that the proponents of Prop 8 do not have standing, or–as he seemed to entertain today–he could find that the Prop 8 case was improperly granted.  He explicitly asked both Ted Olson and Charles Cooper if the Supreme Court was correct to take up the Prop 8 case, and while both lawyers said it was, he seemed unconvinced, especially because it was the Ninth Circuit’s (in his word) “odd” decision before the Court and not the district court’s broader ruling of a fundamental right to marriage equality.

Intriguingly, that was not the only indication of who on the Court might have voted to grant certiorari in the Perry case for the Supreme Court to review the Ninth Circuit’s ruling.  As Justice Sotomayor said at one point, the Supreme Court “let racial segregation perk for 50 years,” to which Justice Scalia tartly replied, “It’s too late for that … now, isn’t it?  I mean, we granted cert.”  That might mean that the four more liberal Justices are content to let the Ninth Circuit or district court’s ruling(s) stand, returning marriage equality to California but holding off on addressing the more fundamental questions of equality under law.  If Justice Kennedy goes in search of four more votes for a ruling that returns equal marriage to California but makes no broader, precedential argument, the liberals might be amenable.  And if he can find a way to ease the conservatives’ fears that denying the proponents standing would not mean setting up a process for state executives to nullify the results of a ballot initiative, he may garner one or two of their votes as well.

Of course, only he knows if that is what indeed he’s looking for.

2 Comments March 26, 2013

I just left the Supreme Court: here’s my first take on the Justices’ questions

By Jacob Combs

UPDATE 2 (12:55 p.m.): Addressing the merits of the case and arguing against Prop 8’s constitutionality, Ted Olson repeatedly told the Court that marriage is a personal individual liberty and a fundamental right, and that procreation is not a part of that right.  Prop 8, he said, excludes gay and lesbian Californians from that right.

Chief Justice Roberts jumped in early, throwing cold water on the idea that Prop 8 ‘excludes’ gays from marriage and instead saying that marriage developed historically for reasons that gay unions do not forward (i.e., procreation).

The Chief Justice and Olson got into a bit of a weedy debate about whether the Prop 8 case would be different if the law had been passed before the California Supreme Court extended marriage rights to same-sex couples, with Roberts saying that if the timing had been different, Olson wouldn’t be arguing that Prop 8 excluded gays and lesbians from marriage.  Olson reiterated his point that marriage is a fundamental right, and said that while the argument in that case would be subtly different, it would still rely on the central question of whether the fundamental right to marry can be withheld.

Scalia asked Olson, “When did it become unconstitutional to exclude gays from marriage?”  Olson gamely responded, “When did it become unconstitutional to exclude interracial couples from marriage?”  Scalia testily pressed Olson for a specific date, which Olson refused to provide.

Kennedy in particular seemed very skeptical of the Ninth Circuit’s narrow argument striking down Prop 8 specifically in light of California’s unique history of marriage equality.  He characterized that decision as one that said that a state could only go all the way to full marriage equality as opposed to going part way and providing some rights.

Once again, Sotomayor stepped in and steered the arguments back to the central question.  If marriage equality is a right, she asked Olson, would any state restrictions on marriage survive, such as those on incest or polygamy?  Olson had a quick answer: polygamy is based on conduct while sexual orientation is based on identity.  Sotomayor also asked if there is any way the Court could limit its ruling to California.  Olson said such a ruling would be one in which the proponents were found not to have standing.

Speaking on behalf of the federal government, Solicitor General Verrilli underscored the administration’s belief that Prop 8 should be considered under heightened scrutiny, a more searching form of judicial review.  California’s laws, he argued, blow up the proponents’ claims that the state has an interest in reserving marriage to opposite-sex couples since California affords full rights to same-sex couples.

When pressed by the Justices as to whether Verrilli was calling for a nationwide right to marriage equality (and when asked how a ruling could be limited just to the eight states which currently provide civil unions or domestic partnerships), Verrilli said the administration was looking to keep the door open for different cases to arise from different states which might have their own reasons for denying marriage licenses for same-sex couples.

Significantly, there was very little discussion of the proper level of scrutiny to apply to laws that classify on the basis of sexual orientation.  This could mean that the Justices think the case will be decided on the basis of standing, or (more probably) that they believe the scrutiny discussion will be fully argued tomorrow during the consideration of the constitutionality of Section 3 of the Defense of Marriage Act in the U.S. v. Windsor case.

UPDATE 1 (12:25 p.m. Eastern): On to the merits! Charles Cooper had two central points: in the first, he put significant emphasis on the fact that there is an “earnest debate” happening across the country on marriage equality.  Cooper asked early on, rhetorically, if the Supreme Court should stop that debate, saying that it could only do so it if found that Prop 8 was entirely based on animus.

Cooper’s second point, of course, was his oft-repeated ‘responsible procreation’ argument.  Same-sex couples, Cooper contended, are not ‘similarly situated’ (a central component to equal protection consideration) to opposite-sex couples because only opposite-sex couples can procreate naturally.  Justice Kagan pointed out that Cooper had made an argument for not including same-sex couples in the institution of marriage (because marriages between same-sex couples does not explicitly further the state’s interest in responsible procreation), but asked whether he could justify a law that excludes them from the institution.

Kagan told Cooper she couldn’t find in his legal briefs any specific harms that would result from allowing same-sex couples to marry.  Cooper said that this notion of specific harms is not the central legal issue in the case, circling back to his earlier argument that restricting marriage to opposite-sex couples is justifiable because it furthers a state’s interest in responsible procreation.

Justice Scalia addressed gay adoption, saying that allowing marriage equality would require allowing same-sex couples to adopt.  Since some states don’t allow that, he said, could Cooper address any harms arising out of gay adoption?  If so, he implied, Prop 8 could be rationally defended.  Cooper demurred.  Justice Breyer then jumped in with a question that focused on California, asking how allowing marriage for gay couples in a state with same-sex adoption would deleteriously affect straight couples in any way that allowing sterile couples to marry would not.  Kagan picked up on this, asking if a restriction on age would be OK–say, a prohibition on couples over 55 marrying.  Cooper said that marriage would still channel such couples’ sexual activity in such a way that would encourage fidelity and responsible procreation.  In response to this, Justice Ginsberg pointed out that the Supreme Court has recognized a right to marry even for prison inmates with no possibility of procreating.

At one point, Kennedy pointed out that the sociological evidence about families headed by same-sex couples and whether there are any effects on children is new and not conclusive.  But in the very same sentence, he mentioned that there is a specific legal injury present in the case suffered by the almost 40,000 children living in California with same-sex parents.

ORIGINAL POST (12:10 p.m. Eastern): I just walked out of oral arguments at the U.S. Supreme Court and waded my way through a huge crowd of supporters in front shouting “equal rights under the law.”  It was a whirlwind hearing and all three lawyers faced tough questions from the Justices.  Here’s a first look at the Justices’s questions and what they might mean.

The biggest takeaway is that there was a serious focus on issues of standing and jurisdiction during today’s oral arguments.  Charles Cooper, representing the Prop 8 proponents, got in a few words before Chief Justice Roberts steered him towards addressing whether the proponents have standing to defend Prop 8.  The Chief Justice did the same to Ted Olson (who said, gamely, “I was trying to avoid that”) and Solicitor General Donald Verrilli, Jr., who was arguing the federal government’s position.

There was substantial concern on the parts of the Justices as to how to avoid a situation where an initiative such as Prop 8 could be nullified by an administration that did not agree with the law.  Cooper seemed to open the door to a very new, broad right to standing: when asked by Justice Kagan if a state could assign any citizen to defend its laws, Cooper responded, “It very well might.”

Ted Olson repeatedly assured the Court that a state could appoint an ‘officer’ that would defend the law, specifically pointing to the fact that that individual would understand and be obliged to keep in mind the financial burden faced by a state.  Justice Scalia was skeptical, asking whether that person would be appointed by the same administration that chose not to defend the law, but Olson reassured him that many administrations have done so in the past, even for laws that they did not agree with.

Ted Olson argued (picking up on a line of thought that Chief Justice Roberts had presented to Charles Cooper) that adopting the Prop 8 proponents’ argument on standing would essentially allow states to dictate Article III standing; that is, they could say that any individual could represent the interests of the state even without a personalized injury.  This would basically negate the whole point of Article III standing, which establishes a certain set of norms and guidelines under which cases can be brought to the federal courts.

Several times, Justice Sotomayor stepped in and said something to the effect of, here’s what all these questions are driving to, and here’s the fundamental issue you need to address.  On the standing question, Sotomayor asked Olson point blank: Who ensures that a law is defended if a state’s executive decides that it won’t do so?  Olson stuck to his guns, saying that the proponents of a ballot measure cannot possibly fully understand a state’s interests in a specific law, and that there would instead need to be some kind of appointment process where an administration which had chosen not to defend a law would delegate that task to a specific governmental individual.

During his time for argument, Solicitor General Verrilli underscored the fact that the United States had not addressed the issue of standing in its briefs and said that the federal government had “no formal position” on the issue.  Nonetheless, he said that the government leans towards the plaintiffs’ arguments and believes that the Prop 8 proponents lack the particularized injury to qualify for Article III standing.

As always, Justice Kennedy is almost certainly going to be the swing vote: none of the other conservative Justices appeared anywhere close to a ruling that would declare Prop 8 unconstitutional.  Kennedy’s questions on the merits were pointed and probed both sides.

This post will continue updating from the top.  Stay tuned for more!

3 Comments March 26, 2013

Prop 8 oral arguments at Supreme Court ending

By Adam Bink

Just an update folks: the hearing will conclude shortly here in DC at the Supreme Court.’s own Jacob Combs is seated in the press gallery and dashing to a computer we have set up nearby to file his report. We’ll have a post up shortly. In the meantime, stay tuned to @jacobdcombs and @adamjbink on Twitter for snippets on what happened as we work to get you a report!

March 26, 2013

Prop 8 and DOMA: what to look for at this week’s Supreme Court hearings

Courtesy of the Supreme Court
The U.S. Supreme Court

By Jacob Combs

After literally years of waiting, we’re finally at one of the last big moments in the Prop 8 case.

Tomorrow, at 10 a.m., the Supreme Court will hear oral arguments about the constitutionality of California’s marriage equality ban.  The next morning, it will consider whether Section 3 of the Defense of Marriage Act, which limits federal marital benefits to opposite-sex couples, is constitutional.

We’ve been following this case, as a community, since its very first day in a district court room in San Francisco.  I’ve said this before, and I’ll say it again: it’s an honor to write for you, to hear your thoughts, and to be part of this historic moment.  I’ll be in the courtroom feverishly taking notes from the press section, which is beyond exciting.

Please do comment on our posts from DC this week, and we’ll do our best to get back to you on any questions or feedback you have.  For those of you who are Twitter folks, you can follow me at @jacobdcombs, Scottie at @indiemcemopants, and Adam at @adamjbink.  And, as always, feel free to email us!

Here are some thoughts on what’s worth looking for tomorrow, and Wednesday, during oral arguments.

The Justices’ demeanor

As Georgetown Law professor Nan Hunter pointed out in a recent blog post on the Supreme Court, most lawyers who argue before the high court believe that cases are won and lost in the briefs, not during oral arguments.  That means that the pages and pages of legal arguments submitted by the proponents of Prop 8, the plaintiffs represented by Ted Olson and David Boies, and the myriad outside groups who filed friend-of-the-court briefs have likely set the stage already for the Justices’ ultimate decision.

With that in mind, while it is tempting to read into the Justices’ words and actions during oral argument, such mind-reading can often be wildly off the mark.  Remember that Jeffrey Toobin walked out of the oral arguments for Obamacare last year and called them a “train wreck,” saying that the law “looks like it’s going to be struck down.”  The Court later largely upheld the law 5-4.

The Justices’ questions, then, can sometimes function as an attempt to persuade other Justices of the validity or weakness of specific arguments.  For this reason, a Justice leaning towards one ruling might very well ask critical questions of the lawyer presenting that position precisely in an attempt to probe all the holes in the argument so that another Justice might be encouraged later to adopt it.

The long and short of this is that while there will likely be much discussion of the Justices’ tone and demeanor during oral arguments (and yes, we’ll probably talk about it on our blog, too), it’s best to remember that there is much more to a Supreme Court opinion than whether Justice Kennedy was frowning when Ted Olson started to answer his third question.

The opening bid

As Hunter points out, oral arguments largely represent an opportunity for the lawyers on both sides of a case to keep the discussion focused on the strongest points in their arguments and to steer the Justices away from potential pitfalls in their legal reasoning.  Since the Justices can–and almost always do–frequently interrupt the lawyers arguing before them, each lawyer will use his or her opening sentences, right up to that first interruption, to present what he or she considers the strongest argument to persuade the Justices.

For Charles Cooper–the attorney for the Prop 8 proponents, who will be the first to address the Justices–that will likely mean a strong emphasis on the biological fact that same-sex couples cannot reproduce naturally.  Cooper has consistently argued that Prop 8 can be defended as an attempt by California to channel heterosexual sex into marriage (the so-called ‘responsible procreation’ rationale), and he is likely to rely heavily on that point once again.

For Ted Olson, representing the plaintiffs, expect a focus on love, commitment and the irrationality of California’s offering the rights of marriage but not the name to same-sex couples.

In the DOMA case, Paul Clement, representing the Bipartisan Legal Advisory Group, will probably focus on his argument that DOMA can be defended with the understanding that it created a uniform, federal definition of marriage and that it was enacted to allow the states to ‘experiment’ with marriage equality without affecting the federal government.  He will likely also address the responsible procreation argument.

Edie Windsor’s lawyer, Roberta Kaplan, on the other hand, will likely point to the irrationality of DOMA’s enormous financial burden on Windsor simply because she was married to a woman instead of a man, and the equal protection violation implicit in such a capricious distinction.

Standing versus the merits

As any longtime follower of both the Prop 8 and DOMA cases knows, there are significant questions of standing and jurisdiction in both cases that are important threshold issues to whether the high court can even consider the two laws on their merits.  In the Prop 8 case, the question is whether the proponents of Prop 8 have standing to defend the law in the place of California’s elected officials; in the DOMA case, there are two questions: whether the Bipartisan Legal Advisory Group can defend that law after the Justice Department announced it would not, and whether the Supreme Court has jurisdiction to hear a case where the plaintiff and the defendant want the same outcome.

For the DOMA hearing on Wednesday, the Court has specifically lengthened oral argument, providing 50 minutes to consider the jurisdictional questions and then an hour to consider DOMA on the merits. For the Prop 8 hearing on Tuesday, however, it has made no such distinction, simply leaving an hour for all argument.  It will be very intriguing, if (once again) not predictive, to see how the Court divides its time on these issues in the Prop 8 case.

For instance, if the Court spends most of its time asking about the proponents’ standing, or if Charles Cooper ends up defending his clients’ right to pursue the appeal instead of defending Prop 8 itself, it could mean that the Court is leaning towards a very limited decision that does not rule on the law’s constitutionality.  On the other hand, the fact that the Justices did not set aside time for the standing question during the Prop 8 hearing could mean they think it needs less examination than the jurisdictional issues in the DOMA case.  As always, it’s wise not to read too much into this.

If I were a betting man…

I’m not, so this is sort of an academic exercise, but I figure it’s worth putting this down on the record before oral arguments, which might change my thoughts.  From the briefs themselves, and the fact that the Supreme Court decided to take up the Prop 8 appeal when many observers (myself included) thought they would not, here’s my prediction.

While I have pretty serious doubts about the proponents’ standing under Article III, my doubts stem for the most part from the California Supreme Court decision (issued at the Ninth Circuit’s request) that the proponents do have standing under California law to represent the state’s interest in defending Prop 8 since they helped put it on the ballot.  The California Supreme Court declined to even consider whether the proponents would suffer any personal, particularized injury if Prop 8 was invalidated.

Yes, that opinion is only advisory, and the Supreme Court can make its own determination of the proponents’ standing under federal law.  But my gut says that they’ll defer to the California Supreme Court’s logic and put off (yet again) any finality on whether ballot proponents have federal standing to defend the law’s they’ve championed.

That means I do think Prop 8 will be decided on the merits, and I do think it will be struck down 5-4 or perhaps 6-3 (with Chief Justice Roberts joining Justice Kennedy’s opinion), depending on the scope of the decision.  I’m skeptical we’ll see a nationwide, fundamental right to marriage equality, but I’m also skeptical the Supremes will adopt the Ninth Circuit’s argument whole cloth.  So I think we’ll probably see something new in the reasoning here that gets us to invalidating Prop 8 but not invalidating marriage equality bans across the country.

In the DOMA case, I highly doubt the Court wants to set up the legal chaos that would ensue from a decision that it has no jurisdiction to consider DOMA’s constitutionality.  That would mean, essentially, that until a trial court upholds DOMA, or a new Justice Department decides to start defending the law again, there could be no final judicial determination on the law.  Simply put: it would be messy.

I do think this means that the Court will likely elide the issue of whether BLAG has its own standing to appeal.  If the Court can hear the case just on the basis of the continued dispute between Edie Windsor and the federal government as to the tax refund, BLAG gets to piggy back on the case, and that question does not get explicitly answered.

Since Judge Joseph Tauro became the first district court judge to strike down DOMA, I’ve been thoroughly convinced that the law’s days were numbered.  Now that several other district court judges and two circuit courts have invalidated it, I have very few doubts that the Supreme Court will do the same.  I would be surprised if Roberts didn’t vote against DOMA, and I actually think there’s a chance he will write the opinion himself if he does join it.  There may be some other surprise votes here against DOMA, since there is a states’ rights component that the conservative Justices may be swayed by.

In the end, though, Professor Hunter says it best: “Is anything a safe bet? Justice Thomas won’t give anyone the satisfaction of asking a question; Justice Scalia will say something sarcastic; Justice Sotomayor will jump in with both feet. Beyond that, I’m not betting on anything.”

1 Comment March 25, 2013

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