Sunday, June 16, 2013

"All Deliberate Speed" for Same-Sex Marriage?

By Mike Dorf

Although it's always tricky to predict outcomes of SCOTUS cases, the betting among the cognoscenti is that the Court will invalidate DOMA in the Windsor case and either uphold Prop 8 in the Perry case or find some way to duck the question.  Among other tea leaves we SCOTUS-watchers have been trying to read are Justice Ginsburg's repeated recent statements criticizing the Court for going "too far too fast" in Roe v. Wade.  As I've explained before, I disagree with her analysis of Roe, but there's no denying that she continues to infer from the experience of the last 40 years that the Court ought to tread lightly and go slowly where divisive social issues are at stake.  It's a fair (if not ironclad) inference that her recent statements regarding Roe are meant to prepare supporters of SSM for disappointment.  After all, if Justice Ginsburg thinks that it's too soon to recognize a right to SSM, it's hard to see how one gets to five without her.

Okay, so suppose you are a SCOTUS Justice who thinks, as Justice Ginsburg may be thinking, that the Constitution is best read to protect a right to SSM, but you worry that if the Court so holds now, there will be a backlash, perhaps even a violent one.  What are your options?

1) Bickelian Passive Virtues 

Following the analysis of the late Alex Bickel, you could exercise the "passive virtues" by deciding not to decide.  The best way to do that would have been simply to deny certiorari.  While that option wasn't available in Windsor--because a federal appeals court struck down a federal statute--it was certainly available in Perry.  It's not too late to deny cert retroactively now, by dismissing as improvidently granted (DIGging), but the betting seems to be running against that course.  Accordingly, the most likely "passive virtues" approach would be for the Court to find that the ballot initiative sponsors lacked standing to defend Prop 8.  I don't like that solution as a matter of standing law but the argument for no standing is plausible enough for the Court to hang its hat thereon.

2) Rule Against the Plaintiffs in Whole or in Part on the Merits

A partial victory for the plaintiffs along the lines of what the 9th Circuit did in Perry would address Justice Ginsburg's concern.  Per the 9th Circuit, the Court could say that there is a right to SSM only in states that once recognized, but then took away, SSM, i.e., California.  Or somewhat more broadly, the Court could follow the suggestion of the federal government and hold that there is a right to SSM in states that recognize same-sex domestic partnerships with all (or nearly all?) of the rights of marriage.  Either approach would avoid Justice Ginsburg's worry of sparking backlash because neither approach would require SSM in the most conservative states.  But during the oral argument, the Justices did not seem at all persuaded by either of these relatively narrow paths to victory for the Prop 8 plaintiffs.  At least at that time, it looked like the only merits positions that the Court was interested in was either a complete victory or a complete defeat for the plaintiffs.  If THOSE are the only choices, then a decision on the merits that doesn't spark backlash (on the supposed Ginsburg/backlash theory), would be a complete defeat for the plaintiffs.

3) All Deliberate Speed

If those are the only options for addressing the backlash fear, I would think that it's more likely that the Court denies standing in Perry than that it out and out denies any right to SSM on the merits.  A ruling along the latter lines is, after all, exactly what the LGBT rights community has been worried about all along, and the reason why the Boies/Olson lawsuit did not originally have the support of the larger LGBT rights litigation community.  They/we worried that taking the case to the Court too soon would result in a rights-denying ruling that would then delay an eventual rights-recognizing ruling.

But maybe there's a third option.  Is there some way to avoid a merits decision that denies the right to SSM and to avoid a (mostly) bogus opinion denying standing?  Maybe the Court could write an opinion along the lines of Brown v. Board II.  Having decided in Brown I that de jure racial segregation is unconstitutional, the Brown II Court nonetheless gave localities some time to address the supposed local variations in conditions needed to provide a remedy--under the supervision of the federal district courts exercising traditional principles of equitable discretion.  In the famous, albeit somewhat oxymoronic, phrasing of the Brown II Court, school districts were to desegregate "with all deliberate speed."

Brown II is generally regarded as an act of weakness bordering on cowardice by the Supreme Court.  Fearful that states and localities would disregard their mandate, the Justices blinked, and thus tacitly signalled to recalcitrant segregationists that they could drag their feet.  They did just that and as a consequence, desegregation cases remained in the courts for dedades.

Accordingly, I realize that it is odd to invoke Brown II as a model.  I am not suggesting that the Court should model a ruling exactly on Brown II.  Rather, my idea is that Brown II indicates another way of ducking backlash:  Vote for the plaintiffs on the merits with respect to liability but give the defendants some time to provide a remedy--say, five years to get to civil unions and another five to get to marriage.

The great virtue of this approach is that it's honest.  The Court would not have to make up bogus arguments against standing or worse, to rule against the Perry plaintiffs on the merits.  The Justices would say the following: We think that the Constitution is best read to protect a right to SSM but we realize that this issue is still very controversial and so we will give people time to adjust.

That is actually what the Brown II Court was really up to--although the Court couched its ruling in terms of the complexities of coming up with new districting plans.  There are no complexities with respect to SSM.  A state or locality can just start issuing same-sex marriage licenses.  So the Court would have to be honest about what it's doing.

The disadvantage, of course, is that while the delay-the-remedy approach is honest, it's not clear that it's exactly legal.  The Court has sometimes stayed its rulings to allow political actors to adjust.  For example, after the Court invalidated the bankruptcy jurisdiction in the Northern Pipeline case, it gave Congress over a year to come up with something else, allowing the bankruptcy courts to operate unconstitutionally in the interim.  But there, and in other similar cases, complex details needed to be worked out in the interim period.  To my knowledge, the Court has never stayed its judgment in this way to allow society to adjust to its substantive ruling.

Anyway, I offer this idea simply as a kind of thought experiment.  With a decision imminent, and with no one having argued for the "Brown II option", the Court will almost certainly not come up with it on its own.  Moreover, as I said, I think the risk of backlash is very much overblown, so I would prefer to see a ruling simply finding a right to SSM, full stop.


David Ricardo said...

What Mr. Dorf does not address is that however the Supreme Court rules, unless it rules unequivocally that same sex marriage is or is not allowed, the Court will end up looking like fools. To dismiss the California challenge on grounds of standing raises the question of why they took the case in the first place, and why they put everyone through the procedure of a Supreme Court appeal and then did not make a decision.

If they rule that Prop. 9 is not legal because it takes away a right that was in existence then they look like fools also. The reasoning that (a) same sex marriage is not a right and (b) if it is granted it cannot be taken away because voters and/or the state cannot remove a right once given even if that that right is not right looks just outright ridiculous.

Joe said...

"Why" they took the case is suggested by the questions presented:

(1) Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman; and (2) whether petitioners have standing under Article III, § 2 of the Constitution in this case.

It might upset people but they are not "fools" for deciding per #2 that there is no standing. This is done ALL THE TIME -- just yesterday, in a 5A case, the Court ruled narrowly, determining the broader question was not necessary to decide the matter.

The standing issue is a major constitutional point. It would have saved a lot of time if the non-involvement of the state made the appeals a no go. In CA alone, the resulting statement of law will be important in future cases.

Also, taking away a right in existence is not the only thing at issue here. It is how it is done that is particularly a problem. It sounds "downright ridiculous" to you perhaps because you are misstating the argument.

David Ricardo said...


There is no problem with the Court deciding that those opposed to Prop. 8 have no standing. In fact, given the Court’s rather strict interpretation of standing, particularly Justice Scalia, I would think that the lack of standing issue is the prevailing one. Those opposed to Prop. 8 have no standing because they cannot show that they have been harmed by the Proposition. (In fact no one can show they have been harmed, which is the point here).

However if the Court decides that standing in the ruling here, it will seem to me and many others that the 'standing' issue was so evident that instead of hearing the case Cert simply should have been denied for reasons of standing. My point is that to go ahead and hear the case on its merits, and then decide that standing precludes any decision based on merits when the issue of standing was clear before oral arguments and consideration by the Court took place makes the Court look rather foolish, which indeed it would be.

As to the concept of giving and then taking away a right, if there is a right to Same Sex Marriage then the Court should say so. If however, the Court says that there is no right to Same Sex Marriage, but that once that right is provided it cannot be taken away, the Court looks inconsistently foolish. If there is no right to Same Sex Marriage why can’t the right once given be taken away if it were never a right in the first place?

For example, a governmental unit may decide that employers cannot discriminate against gay and lesbian individuals in the workplace. Later the same governmental unit may decide that there are no rights here, and remove governmental prohibition against the discrimination. While that might be bad public policy, it is hard to see how that once the right of non-discrimination against gay and lesbian employees is given, that if such protection is not a Constitutional right, it cannot be taken away.

I will admit I do not understand why the “how” of removing a discretionary right is relevant here. Is it the case that legislatures can remove a non-Constitutional entitlement or right but that voters cannot? Why is the “how” relevant?

Gary47a said...

I'm still waiting for a logical explanation why the district court had jurisdiction. Marriage has never been a Federal matter, except for some narrow areas like stopping polygamy in Utah.

T Jones said...

The problem with your analogy is that the California Supreme Court found a right to SSM under the California constitution, and Prop 8 was a voter amendment of the constitution to remove that right. Thus, it is not a series of administrative decisions; but the majority depriving a minority of a constitutional right. Thus, the District Court's painstaking evidentiary investigation into whether there was even a rational basis for the decision.

David Ricardo said...

t Jones

I think we need to distinguish California law and the California Constitution with the U. S. Constitution.

California courts did not rule on the validity of SSM under Prop. 8. That was not the issue. They have ruled that Prop. 8 was a valid amendment to the California Constitution. Therefore, as a California Constitutional issue Prop. 8 did not and could not violate that Constitution because it legally amended the California Constitution. The majority did not deprive a minority of a legal right under the California Constitution. A valid Constitutional amendment cannot be a violation of a Constitution.

The issue before the U. S. courts is whether or not Prop. 8 violated the U. S. Constitution, not the California Constitution. That is, did a majority deprive a minority of a legal right that is granted by the U. S. Constitution, which lower courts held that it did.

The process by which a minority was deprived of a right granted by the U. S. Constitution seems to me to be irrelevant. Either the right exists under the Constitution or it does not. Neither a state legislature or direct vote by state citizens or a decision by a state court can invalidate a U. S. Constitutional right.

Joe said...

@The Dismal Political Economist

Why in particular is it "so evident" regarding standing that they will look like "fools"? That was the claim. The question is one reasonable minds can disagree on.

And, the USSC repeatedly does this. That is, raises a procedural or other limited point and the merits, winding up at times to rule on a limited ground after hearing the merits, which at least some justices (see, e.g., the rule of four) find reasonable enough to warrant argument.

Many might not know this, since they are not aware of how the Court does things, but this still wouldn't make them foolish. The true fools, with respect, are those who don't know how the Court works in that respect.

As to the second matter, if deciding the larger question (the right to marry including same sex marriage) is not necessary, again, it should not advisory opinion like reach out to answer the question. Again, this is how the USSC does business -- they go slowly. I take that you know this, but the general public might not.

Again, let me repeat myself, merely taking a right not protecting by the federal constitution all by its lonesome is not the issue here nor is it what is said to be unconstitutional.

The "how" is relevant -- I'm at a loss here ... have you read much on the case? This issue has been covered a lot. I guess you might not have, since it is not merely the body who takes the non-federal constitutional right away.

Have you read the lower court? They explained it. Marty Lederman explained it at the time and later. As did others. The problem is that a specific group was targeted in a particular fashion without adequate reasons offered.

See, e.g., Romer v. Evans. There is no constitutional right to state protections granted there but depriving the group in question that way was deemed a problem. Not because it was an amendment as such.

As to the "process" not mattering, political process arguments are not actually the substantive claim here as such though for purposes of due process and so forth, "process" is relevant. Letting the matter be decided by the back and forth of regular legislative process like other things is how our system usually handles things. Ballot measures are acceptable but they can be problematic. See, e.g., Hunter v. Erickson.

Joe said...

"Marriage has never been a Federal matter"

I don't understand. Was Loving v. CA wrongly taken? It was taken because federal constitutional claims were raised. Even purely state matters might be handled in ways that violate federal constitutional grounds, such as purely state criminal matters being ex post facto laws.

David Ricardo said...

It appears from some of the comments that some individuals do not completely understand the legal issues in the Prop. 8 case, so here is as succinctly as possible a summary and some brief analysis.

There were two jurisdictions involved in the legalities of Prop. 8, the state of California and the U. S. Constitution. Once the state of California ruled that Prop. 8 was a valid amendment to the California state Constitution, California was no longer involved. A valid amendment to a state constitution cannot be in violation of that constitution by definition.

The case then moved to Federal court because plaintiffs argued that Prop. 8 violated their rights under the U. S. Constitution, and at trial and appeal this was determined to be the case. The rulings were based on the fact that other than animus to same sex couples, there was no reason or rationale provided by those defending Prop. 8 to ban SSM in California, and hence the ban was a violation of the rights granted in the U. S. Constitution.

This should then have been a straight forward issue for the U. S. Supreme Court. (And no sorry, Romer is not relevant here, that involved an issue between state government and local governments. And no, the ‘how’ the ban on SSM was done is not an issue here.) But California had thrown a huge monkey wrench into the proceedings. California declined to defend Prop. 8 in Federal court, and as a result a private group was allowed to act as defenders of Prop. 8 in the trial and the appeal. This then raised the rather thorny issue of whether or not that private group had standing and could act to defend the Proposition, or whether or not the plaintiffs won by default. (All in all a terrible decision of California not to defend, but that discussion is for another time.)

So now the Supreme Court had to deal with two issues, the Constitutionality of Prop. 8 and the issue of standing for those who were acting in its defense. Taking the standing issue it would seem the Court has three options.

1. It could state simply that standing is granted, and address or not address the issue of standing at all, and then go on to rule on the merits of the case.

2. It could rule narrowly, that in this situation and this situation alone, standing is not granted and the case defaults to the Appellate Court decision.

3. It could rule broadly that a private group that is not directly impacted by a state law or state constitutional provision never has standing to step into the defense of a validly enacted state law or state constitutional provision and the case defaults to the Appellate Court decision. Based on historical precedents at the Court this would seem to be the correct decision. But it would be a terrible one.

The reason options 2 or 3 would be bad is that if the Court were to go with either option 2 or option 3 above and not rule on the merits of the case, it would look foolish in this situation. Yes I understand the Court has done this many times before, and I understand Supreme Court procedure, but in this case the populace is looking for a decision on the legalities of SSM. For the Court to duck the issue under a standing conflict would make it look foolish (and cowardly) because it allowed an extraneous issue to hijack the serious question of the constitutionality of Prop. 8.

Finally, in all due modesty (not really) I have read all of the cases, read much of the commentary and have as great an understanding of this case as anyone who is not directly involved. I am not sure others who post here can make that claim. But Joe is correct in this statement, “The problem is that a specific group was targeted in a particular fashion without adequate reasons offered.” But notice that is independent of the how the group was targeted, which is my point exactly. The point is not that this was done by direct public voting, but that the defenders were unable to provide any legitimate reasons to justify Prop. 8 whatsoever. And for that reason, not the standings issue, the Court should determine that Prop. 8 is invalid.

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