Wednesday, June 26, 2013

First Takes on DOMA and Prop 8 Rulings

By Mike Dorf

I've now read the majority opinion in Windsor (striking down DOMA) and enough of Perry (dismissing the Prop 8 challenge for lack of appellate standing) to formulate a few instant reactions on a number of points:

1) If Bill Clinton was "the first Black president," Anthony Kennedy has now firmly secured his place in history as "the first gay Justice."  As the author of Romer v. EvansLawrence v. Texas and now United States v. Windsor, Justice Kennedy makes clear that he not only accepts, but welcomes the task of writing majestic opinions affirming the dignity of gay persons and couples.  He remains fundamentally conservative on matters of federalism and his notions of equality when it comes to race are tightly formalistic, but his legacy is now secure.  A hundred years from now, histories of the Court will treat Justice Kennedy w/r/t gay rights the way we think of Earl Warren w/r/t racial equality.

2) There will be a vigorous debate now about the implications of Windsor for challenges to state laws that deny SSM.  CJ Roberts says the following in his Windsor dissent:
The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” may continue to utilize the traditional definition of marriage.
That strikes me as technically correct but wrong on the big picture.  Justice Kennedy's opinion in Windsor is chock full of language that, if taken seriously, would surely invalidate state bans on SSM.  Here is what I consider the money quote from the majority:
DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier  marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.  Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive. 
Yes, that quote and the rest of the opinion say that state recognition is important but I find it hard to believe that any of the five Justices who signed onto it would sustain state prohibitions of SSM if they had to decide that question.  Rather, it seems clear to me that for prudential reasons, the majority wrote the opinion in such a way as to put off the decision of whether there is a right to SSM for at least several years, thus allowing the political process to continue to unfold.

3) To my mind, the real mystery is the lineup in Perry, which does not correspond to the Justices' views on the merits.  CJ Roberts writes for a majority that includes himself and Justices Scalia, Ginsburg, Breyer and Kagan.  There are two possibilities here.  One is that the Justices made radically different calculations about what would happen if they reached the merits.  The other is--amazingly!--that they had honest, non-ideological differences about the standing issue.  (More about that tomorrow.)


Blogger said...

What does Perry mean for non-parties to the case in California who want to get married there? Do they have to sue in their own cases to get the right to marry, or does the California district court case somehow "strike down" Prop 8 such that everyone is entitled to marry? The media seems to be assuming that the answer is yes, but I'm not sure why.

Michael C. Dorf said...

Excellent question from Blogger. The Court says the appeals court was w/o jurisdiction but that the district court had jurisdiction and the district court enjoined the governor and the AG from enforcing Prop 8 statewide. So there will be an initial question for the Governor and the state AG. I predict they will say that this means Prop 8 is dead--but I don't know California politics all that well.

Blogger said...

Thanks, Prof. Dorf. I thought of this because a while ago you wrote an article about why Judge Forrest in SDNY was mistaken to enjoin enforcement of another law simply because it was "facially invalid." See

So I wonder if opponents of same-sex marriage have a basis to oppose the general application of the distict court opinion in California, arguing that it should only apply to the litigants and that a broad injunction is somehow ultra vires.

Rapp said...

I found your blog this AM as I searched for some information on how the Windsor decision might affect states granting civil unions. I'm in a civil union in IL and am anxious to discover what this means for me and others in my state.

Joe said...

There is an interesting post at Balkanization that notes that the Perry majority would have troubling implications in other contexts. Also, the dissent doesn't address the merits. It honors state discretion in a way that would appeal to Thomas. And, Alito in his DOMA dissent ridicules the district judge in Prop 8. To me, appears he was loathe to just punt there.

As #2, I think you are probably right, though the opinion as a whole honors states deciding such questions. Now your Jonathan Rauch types ("Gay Marriage" book) will see the merits of letting states do it state by state, but others might not think so.

Matt said...

Professor Dorf,

I'm guessing that Kagan, Breyer, and Ginsburg made the calculated decision to hold off on the merits of Prop. 8, and that Roberts and Scalia saw the writing on the wall (i.e., how Kennedy was going to vote), and so figured they'd head him off by ruling against standing.

And it's probably no surprise that Kennedy and Thomas voted for standing, as they are generally considered something of judicial supremacists. I'm a bit baffled by the votes of Sotomayor and Alito, though.

The Justices would have some understanding about how their colleagues are going to vote pre-conference, but they (usually) don't actually share how they plan to vote with one another pre-conference, right? I suppose it's also possible for the Justices to change their decisions after the conference too, though I'm not sure how common this is (and I'm hoping that Professor Dorf tells that story some day...)

If anything, though, the voting pattern at least provides some evidence about Kagan's and Sotomayor's perspectives of the institutional role of the Court (with Kagan appearing to be more deferential to the political process and Sotomayor more eager, in Kennedy-esque fashion, to make judicial pronouncements.)

Shag from Brookline said...

Is it time to sing with Glee "Arrivederci DOMA"? I suspect a Broadway musical in the making.

The Dismal Political Economist said...

While I disagree with the maximum extent possible that Proposition 8 is a valid exercise in either law or public policy, the majority of voters in California deserved better. They deserved their day in court and a defense of their decision to amend the state Constitution the way they did. They deserved better than the incompetent clowns who were selected to defend Prop. 8 at trial. They deserved to have their position adjudicated by the Supreme Court.

In short, they deserved a fair and equal and vigorous hearing of their position, after which they deserved to have that position ruled invalid for reasons that are set forth in the trial court opinion.

Ian said...

Does this give Utah, for instance, the right to recognize polygamy if it wanted to and what would be the result if they tried? Would the USSC uphold those relationships? Sotomeyer mentioned trying to find the limits on defining marriage in her questions at oral arguments.

Ian said...

And to clarify, I'm not trying to sound like a right-wing nut equating same sex marriage to polygamy. I'm just curious on what amount of room today's decision might give a state like Utah if they wanted to try. My guess is that today's decision did say that some Federal limits on marriage (citing to the immigration context) were valid and since Congress required Utah to prohibit polygamy before it became a state, I suspect limits on polygamy would still be upheld but I am curious as to what might happen if Utah tried.

Joe said...

The "people of CA" voted for a governor and AG who -- unlike their opponent -- said they would not defend Prop 8. As Walter Dellinger noted in his amicus brief that influenced the majority, the "people of CA" have various ways for their interests to be defended. They didn't choose them. Government officials repeatedly don't appeal things. When are "the people" deprived when they do so?

Joe said...

Ian, the ruling applies to the federal government, so does not "give" the state power to recognize. It strikes down a federal law that doesn't provide marriage benefits arising from such recognition.

I don't think the provision in question as to Utah is in place for all time. It was tied to that point in time. Utah probably has the power to recognize polygamy now.

As to limits, perhaps we can go the gambit there. Incest etc. Anyway, if pressed, there probably would be grounds for the feds not to recognize polygamy that would be upheld.

Shag from Brookline said...

Imagine how the federal estate tax marital deduction would work with polygamy. Imagine how Social Security survivor benefits might be applied.

To satisfy equal protection, polygamy might have to work both ways, not merely the husband with his harem. And imagine same sex polygamy. Imagine a Mormon President with multiple first ladies. Imagine ....

The Dismal Political Economist said...

Let me raise the following hypothetical which hopefully Mr. Dorf and others will analyze and answer in future postings.

Two identical couples, A and B live in New York and are legally married. A is a same sex couple, B is an opposite sex couple. Both couples can now file joint income tax returns for state and federal purposes and their marriages are recognized by both the Federal government and the state of New York.

Both couples move to a state that does not recognize same sex marriage and in fact has a state constitution that prohibits same sex marriage. The state does recognize legal opposite sex marriages that were entered into in another state and does not require any further action on the part of those couples to have a legally recognized marriage in the new state of residence.

The couples go to file their federal and state income taxes. Couple B is allowed to file a joint return for both state and federal purposes, as has always been the case. What about Couple A?

1. The feds could say that Couple A can no longer file a joint return because they live in a state where their marriage is not recognized. This will of course be a operational nightmare for the IRS. Couple A sues arguing that their rights are abridged. How does the Court rule?

2. The Feds could say that Couple A can still file a joint return. The state sues to prevent this. It argues this amounts to the Feds violating state rights because the Feds are defining marriage when that right belongs to the states. The Feds argue the state does not have standing, that the Feds can set up their income tax rules any way they want. Does the state have standing to sue the Feds to require them to make Couple A file separate returns?

3. The state says that Couple A cannot file a joint state return. Couple A sues arguing a violation of Federal Equal Protection guarantees because they are treated differently than an opposite sex couple for no justifiable reason. Does Couple A have Federal rights here? Can the state deny Couple A the right to file a joint tax return when they allow Couple B (who are in exactly the same legal status with respect to marriage except that Couple B is an opposite sex couple) to do so?

4. The state says Couple A cannot file a joint return. Couple A sues but before the case can be finally adjudicated the state changes its mind and declines to defend the suit. Couple A declares victory under Perry and files a joint return that is accepted by the state. Is this de facto recognition of same sex marriage by the state? Does it violate the state constitution?

5. The state allows Couple A to file a joint state return. Private citizens claim this means recognition of same sex marriage which is a violation of the state constitution. Private citizens sue the state to force them to disallow the filing of the joint state return by Couple A. Couple A and the state say the private citizens do not have standing, and cannot demonstrate that they are harmed by allowing Couple A to file a joint return. Can the private citizens sue the state to prevent the state from accepting a joint tax return from Couple A?

As anyone can see, the Court has created a real mess.

Michael C. Dorf said...

Lots of great questions posed by the commenters. I hope to get to some of them in future posts. Meanwhile, on TDPE's last comment, note that Justice Scalia raises an example much like this in his Windsor dissent. I think the Obama Administration could adopt the view that a couple married anywhere where ssm is legal remains married for federal purposes even if they move to a state where ssm is not recognized. I also think that the Admin probably should adopt this approach as a means of avoiding the constitutional questions that would be raised by a different approach. But much remains to be seen. I'll touch on some of this in tomorrow's post.

Paul Scott said...

The Court did create a mess. I think I agree with J. Scalia that it did so intentionally. Substantively, absent a pure finding that EP is violated by failing to recognize SSM, I think I am happy the mess was created. Having read them over now, however, I think J. Scalia has the standing issue most correctly resolved.

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