"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.