Tomorrow is November 30th and the United States Supreme Court will hold their weekly conference, one of their last before they break for the Christmas holiday and reconvene in January. Besides taking preliminary votes on some recently heard cases, they are set to decide on whether to take on a plethora of pending petitions. All eyes and ears will be on the Court on Monday when they announce new cases granted because it is expected they will grant at least one case involving gay marriage. In fact, they may merge cases and take more than one since there are numerous challenges to state and federal laws regarding the issue.
There are currently eight true petitions before the Court, six of which deal with the constitutionality of the Defense of Marriage Act (DOMA), specifically Section 3 of that law which defines, for federal purposes, marriage as being between a man and a woman. Harkening back to the Clinton Administration, DOMA was enacted largely in response to a Hawaii Supreme Court decision which determined that barring same sex marriage in that state may be violative of the state's constitution. Hawaii subsequently amended their constitution to define marriage as between a man and a woman. Fearing a spread of same sex marriage to other states, the federal government enacted DOMA with strong bipartisan support in both houses of Congress and then signed into law by President Clinton.
Before proceeding, it needs to be noted that DOMA in no way denies any state the right to perform gay marriages or to give state benefits to same sex couples. It does give states the right to recognize same sex marriages performed in other states if they want, or not to recognize them if they want. Most importantly, as concerns these current appeals, it does deny federal benefits to members of same sex marriages performed in states that permit the practice. These practices extend to the obvious tax advantages married couples receive, pension and health care benefits and even burials in veteran's cemeteries. It is estimated that there are over 1,000 federal "benefits" married couples receive that single and/or domestic partner individuals do not receive. And that is just federal law.
Before addressing DOMA, there is one case out of the 9th Circuit Court of Appeals involving an Arizona law. The case is Brewer v. Diaz and it is not a gay marriage case per se. Here, the law is facially neutral in that it is designed to decrease administrative costs and burdens on the state when it comes to state benefits. However, it would appear that the activist 9th Circuit read too much into the case and determined that since it discriminated disproportionately against same sex couples, it was unconstitutional. Which brings us to our second non-DOMA case also out of the 9th Circuit- Hollingsworth vs. Perry.
This is the now infamous Proposition 8 case. Proposition 8 was passed by the voters of California in response to a state supreme court decision which allowed same sex marriage. Many such marriages were actually performed before Proposition 8 effectively ended the practice. There was a rather thorough District Court hearing and review which then overturned Proposition 8. Probably the biggest "controversy" here is that the judge in that case was, himself, a homosexual. In the past, when writing on this subject, there has been some confusion regarding my position on his decision. Philosophically, I disagree with non-elected judges overturning decisions of the people, although I also believe that California's system of referendums is a clear cut example of democracy run amok. However, when you read that decision it is clear that Judge Walker in this case gave both sides a fair hearing and consideration. We can disagree with the outcome, but his reasoning and logic in coming to the conclusion he came to is well-articulated and written. This particular case before the Supreme Court for consideration asks whether the Equal Protection Clause of the 5th Amendment as incorporated against the states through the 14th Amendment prevents a state from defining marriage as between a man and a woman. I would put the odds of the Court actually taking this case before the DOMA cases at 50/50. In theory, they could use this case to bring down state bans on same sex marriage with one fell swoop after which Section 3's definition of marriage in DOMA would likely also fall. But, that is not the way the Roberts Court operates, at least not to this point.
Which is why the Court will likely weigh into the matter of gay marriage vis-a-vis the DOMA cases. There is some overlap between the cases and they all involve Section 3's definition of marriage for federal purposes and whether it violates any of a number of constitutional areas. The history of the case known as Bipartisan Legal Advisory Group of the House of Representatives (BLAG) vs. Gill is long and tortured. Usually, it is the role of the Office of Solicitor General which defends federal laws in courts. However, as the Obama Administration is wont to due through not only selective enforcement of laws, but selective legal defense of those laws, they decided not to defend DOMA in any proceedings. Hence, BLAG picked up the torch and is running with it after the lower courts determined that they had standing to do so, and eventually lost in the lower courts. Hence, this appeal to the Supreme Court as was expected all along. The reason BLAG is even pursuing the case is that they are forcing the issue upon the Court. This case is the more philosophical and all-encompassing of the DOMA cases. If they so choose, they can merge this case with the others, decide this one, then remand the others to the lower courts for reconsideration in light of the BLAG v. Gill decision.
Specifically, the Court is asked whether Section 3 of DOMA violates the Equal Protection component of the Due Process Clause of the 5th Amendment. As one should be aware, the Bill of Rights originally applied to the federal government only. Later Supreme Court decisions made it applicable to the states via the 14th Amendment. This case does not specifically address state actions but asks the broader question in federal terms. Of course, if the Court sides with BLAG, then the ramifications of that decision would extend to the states also and, in effect, the remainder of these cases would have to be remanded and reconsidered in the lower courts. Conversely, if the Court sides with Gill, then they will have essentially decided that Section 3 infringes on a fundamental constitutional right and therefore must fall. That would clear the way for the gay community to receive the same federal benefits opposite-sex married couple receive and, by extension, that would also apply to the states.
That outcome will actually be predicated upon the second question presented in this case: did the lower court create and then apply an unknown standard of review to effectively provide justification for the outcome? If so, then the Court would have no choice other than to overrule the lower court decision (they frown upon lower courts doing this) and then they themselves proclaiming the correct standard of review. Here, the gay community- rightly or wrongly- stands on shaky constitutional law and precedence. Despite a recent spate of cases- Bowers, Lawrence and Romer being the prime examples- the Supreme Court has NEVER recognized homosexuals as belonging to a suspect class (thus triggering strict scrutiny of the law) OR even to intermediate scrutiny (generally involving cases of gender inequality or childhood legitimacy). In effect, the lower court realized this fact and without saying so- in fact, taking great pains to pigeon-hole the law and correct standard of review- did not decide the case under rational basis (the lowest form of review), intermediate or strict scrutiny. Thus, they decided the case and came to their conclusion based upon some amorphous standard of review. Even if the Court determines this, however, the first question remains and the Supreme Court would then have to clearly state which standard of review applies to homosexuals, then apply that standard to Section 3 of DOMA.
The other cases are Health and Human Services vs. Massachusetts, Office of Personnel Management vs. Golinski, Windsor vs. United States and Pedersen vs. Office of Personnel Management. All of these cases start to touch upon another issue- that of state's rights. DOMA does not prohibit states from accepting or recognizing same sex marriages. In all these other cases, individual couples were legally married under their respective state's marriage laws at the time. In one case, a same sex partner was denied health benefits while in another federal funding for a veteran's cemetery is at stake. These are the more nuts-and-bolts practical cases while the BLAG case is the more all-encompassing philosophical resolution of the issue. In all likelihood, and I can and have been wrong in the past here, the Supreme Court will take the BLAG case and possibly hold these other cases until BLAG is decided. That would be the bold thing to do, but again, the tendency of the Roberts Court is to grant cases that do not necessarily lead to sweeping proclamations of constitutional law or going where no court has gone before.
Speaking of state's rights- usually the bane of the liberal establishment- the case of Massachusetts vs. Health and Human Services, an offshoot of the above mentioned HHS vs. Massachusetts (I know...it gets confusing!) touches upon two other issues that indirectly affects the Proposition 8 question and the DOMA cases. This case asks whether Section 3 of DOMA violates the Tenth Amendment and/or the Spending Clause of the Constitution.
Generally speaking, the Tenth Amendment (as well as the Ninth) were passed based upon a fear many had in the 18th century when the Bill of Rights was considered. Initially, there was opposition to the newly written Constitution because there was no enumeration of rights. The Federalists more or less agreed that the issue would be taken up by the first Congress and they followed through on their word. However, another real fear set in. If the Constitution was enumerating rights, what about those "rights" not enumerated? Could Congress pass laws infringing on recognized, but unwritten, rights in the Constitution? The Ninth and Tenth Amendments were added in an attempt to allay those fears and grouped "all other rights" as being retained by the people or by the states.
This particular case is using first a state's rights argument to overturn Section 3 of DOMA. In effect, they are saying that states have always had the right to define marriage, for example, and that federal definitions of marriage which happen to run counter to their definition here violates the right of Massachusetts to define marriage as they see fit. But, this is a double-edged sword for the gay rights community. If Massachusetts can define marriage between two consenting adults regardless of gender, then any other state has an equal right to define marriage as between a man and a woman. In fact, the number of states that does so far exceeds the number of states with same sex marriage.
The second question is whether Section 3 violates the Spending Clause. One of the reasons for passing DOMA- and it was almost an afterthought- is that extending federal benefits to same sex married couples would deprive the government of revenue. A married couple filing a joint tax return, for example, has less tax liability than a single person or married couple filing separately in most cases. Here, the original justification falls on some shaky ground. Most analysis of the economic effect of same sex marriage indicates that it would either be revenue-neutral or an actual increase to federal revenue and overall economic activity. The Supreme Court will not (or should not) wade into an economic analysis of gay marriage. That is what legislatures are for. Instead, all the government would have to do is show a connection between same sex marriage and revenue effects at the federal level for the law to survive under the Spending Clause. And those "revenue effects" can go either way as a plus or negative to the Treasury. That is not the issue. How the federal government decides to SPEND that revenue (for example, extending benefits to same sex couples) is mere justification under the Spending Clause. Likewise, the federal government can decide NOT to spend money on extending benefits to same sex couples.
What, if any cases, granted will likely be announced when the Court convenes on Monday, December 3rd. These cases have been on the Court's list for consideration and all the briefs requested have been submitted. There is no reason for the Court to delay a decision as to which case, if any, they will grant other than some internal squabbling on the scope and breadth of how they want to approach the issue.
There is one side issue which involves Court politics in light of the Obamacare decision. By most accounts, assuming Roberts does not bolt from the right wing of the Court, the Court is evenly split on this issue with Anthony Kennedy being the key/swing vote. If reports of the "controversy" over the Obamacare decision are to believed, there is a rift within the 5-member conservative wing of the Court. The question comes down to whether Kennedy holds together that coalition and upholds DOMA, or whether he bolts from the camp which Roberts is in and narrowly casts the deciding vote with the liberal wing thus striking down DOMA and handing a victory to the LGBT community. In such a case, more confusion would likely occur as the decision would then probably be a plurality decision and they are a sure recipe for further litigation in the area down the road, different interpretations and applications by different Circuit Courts of Appeals, and general confusion in the area.