Thursday, November 11, 2010

Timing Litigation

By Mike Dorf

Federal district courts have recently taken action on gay rights on three fronts: (1) Perry v. Schwarzenegger found a right of same-sex couples in California to marry; (2) Gill v. Office of Personnel Management and its companion case invalidated the provision of the Defense of Marriage Act (DOMA) that denies federal recognition to same-sex marriages that are legal under state law (there Massachusetts); and (3) Log Cabin Republicans v. United States invalidated Don't-Ask-Don't-Tell (DADT).  Each case is currently pending on appeal.  The issue presented in each case will probably make it to the Supreme Court within the next few years.  Does the order in which they arrive matter?  Possibly.

Let's begin by considering Perry and Gill. In at least one respect, the respective pro-gay-rights arguments in the two cases contradict one another.  An important part of the challenge to DOMA in Gill relies on the proposition that domestic relations are a matter for state law.  Yet the core of the argument in Perry is that the federal Constitution constrains state law.  Thus, when persons opposed to same-sex marriage say that the People of California should not have their judgment (as reflected in Prop 8) disturbed, the proponents of a right to same-sex marriage point to Loving v. Virginia (which invalidated state anti-miscegenation laws) as evidence for the proposition that state power to define marriage is not unlimited.

Suppose that the Supreme Court decides Perry first.  If the Court finds a federal constitutional right to same-sex marriage, that will effectively resolve Gill as well, because it will mean that the federal definition of marriage in DOMA is unconstitutional as a denial of equal protection, quite apart from any infringement of state sovereignty.  On the other hand, if the Court rules against the plaintiffs in Perry, it is quite possible that it will rely on arguments about the importance of leaving the states the freedom to control the definition of marriage.  If so, those arguments could then be turned around in favor of the plaintiffs in Gill.

But now suppose the Court decides Gill first.  If the Court accepts the federalism argument as a basis for invalidating DOMA Sec. 3, then that argument could be turned around and used as a basis for rejecting the substantive claims in Perry.  Conversely, if the Court rejects the federalism argument in Gill, that could be used to support the substantive claims in Perry--although the point would hardly be a slam-dunk.  One could think that the federal government gets to define the terms of federal statutes for federal purposes (and thus think that DOMA Sec. 3 is valid) but also think that the states have primacy with respect to marriage for their own internal purposes.

Accordingly, it strikes me that gay rights litigators ought to do everything in their power to get Perry to the Supreme Court before Gill.  It's possible to imagine any combination of outcomes in the two cases, in either order, but it seems that the result in Perry is substantially more likely to be useful in Gill than vice-versa.

What about Log Cabin Republicans?  That case, of course, is not about marriage.  Still, it's in the same general area.  Now, in a couple of important respects, the plaintiffs' case against DADT is especially strong.  First, whereas the claim for a right to marry is a claim seeking  acceptance (rather than mere "toleration") from the mainstream, the challenge to DADT is a challenge to a clearly discriminatory exclusion.  Second, national public opinion still disfavors same-sex marriage (though by smaller margins as time goes by), while a clear majority of Americans disfavor DADT.  Supreme Court Justices may say that such matters are irrelevant, but they certainly act as though they care about public opinion.  On the other side of the ledger we have the traditional deference the courts afford to the elected branches with respect to the military.

Although Log Cabin Republicans doesn't have the same relationship to the other two cases as they have to each other, there is nonetheless overlap.  In each case, the Court could be asked to prescribe a standard of scrutiny for laws drawing distinctions based on sexual orientation.  In each case, the Court could be asked to distinguish between status and conduct.  If one were thinking about the ideal legal strategy, one would want to bring the strongest case first.  The difficulty is knowing which case that is, given the competing considerations noted above.

Thus, I tentatively conclude that it's impossible to know whether it's better to bring Log Cabin Republicans to the Court before or after Perry and Gill, while it's probably better to bring Perry before Gill.  Of course, this sort of analysis would have been much more useful before any of the cases had been filed--at least if there had been serious coordination among the respective lawyers.  Now that the cases are all roughly at the same stage, the timing question is largely out of the lawyers' hands, although it's still interesting to speculate about the timing issues.


Rick said...

Very interesting analysis! At bottom, the trio of cases asks the court to resolve one common question: the standard of review for sexual orientation classifications. The court’s answer will effectively determine the outcomes in all 3 cases. Say, the court decides to apply intermediate scrutiny or some sort of heightened review, then all the discriminatory laws in those cases—whether state or federal—would be unlikely to survive. Once standard of review is settled, a state law can violate federal equal protection guarantees the same way as a federal law. Thus, notwithstanding the federalism issues, those cases resonate and reinforce each other (at least when it comes to equal protection analysis). Sure, timing can be interesting, but I see no irreconcilable conflict between Perry and Gill.

Raffles said...

I wonder what you think about the following argument I've seen a while back. The constitution sets a floor that both states and the federal government have follow (let's say allowing interracial marriage), in Perry. A state is free to go above that floor (say different ages to consent to marriage). But once a state goes above that floor, the federal government must recognize that marriage, in Gill.