NYLS Professor Lays It Out

In Gay City News, a professor at New York Law School, Arthur Leonard,  lays out the history, the SCOTUS orders, the outs they have left themselves and a prediction on the DOMA case.  He says the the Prop 8 case is a toss up on the standing issue and if it rules the direct and narrowness of its decision is anyone's guess.

Justice Walker of the California Supreme Court issued a broad decision declaring that Proposition 8 was unconstitutional.  From there Leonard continues....

The Proponents appealed Walker’s ruling to the Ninth Circuit, which stayed his order pending the outcome of the case. The Ninth Circuit first held that the Proponents had standing to appeal Walker’s ruling, after obtaining an advisory opinion from the California Supreme Court that initiative sponsors enjoy that right under state law. The appeals court then affirmed Walker, but on the narrower theory that no rational basis had been shown for the state to withdraw the right to marry after it had been granted.
In their petition to the Supreme Court, the Proponents posed the broader question –– on which the Supreme Court has now granted review –– of whether same-sex couples are entitled by virtue of the 14th Amendment to the same right to marry enjoyed by different-sex couples.

But the high court will revisit the question whether the Proponents have standing to represent the State of California in defending Prop 8. If the Court rules that they did not have standing to appeal Walker’s ruling as a matter of federal law, that would mean that neither the Supreme Court nor the Ninth Circuit would have jurisdiction to decide their appeal. In that event, Walker’s ruling, which was not appealed by any of the named defendants in the case –– such as the governor or attorney general –– would be the final ruling, binding in the state of California. Same-sex couples would once again have a right to marry there.

If the Supreme Court finds that the Proponents did have standing, it would proceed to consider the merits of the case. It could decide to answer the question on which it granted review –– whether California can reserve the status of marriage to different-sex couples –– or it could, if so inclined, accept the narrower reframing on which the Ninth Circuit decided the case and find that that Prop 8 violated the 14th Amendment because no rational grounds exist to rescind an existing right to marry, especially in a state whose Supreme Court had ruled that same-sex domestic partners were entitled to all the rights of marriage. 

In other words, the December 7 decision by the Supreme Court offers no guide as to how broad or narrow its final decision might be.

The DOMA challenge involves a New York woman, Edith Windsor, who petitioned the IRS to return $380,000 she would not have had to pay were it not for the federal government's refusal to recognize her legal marriage.  When her wife died in 2009, Windsor was left the entire estate. Under laws controlling inheritance a spouse should not be liable for this tax.

There are "standing" issues here as well. Because neither the President nor official bodies of the legislature wished to challenge the lower court's ruling in favor of Windsor, a so-called Bipartisan Legal Advisory Group was formed at direction of Republicans in congress headed up by a former Solicitor General Paul Clement to challenge the decision.  Now the current solicitor General, Donald B. Verrilli, Jr. has filed a petition supporting the lower court's decision and asking the Supreme Court to hear the case for the sake of resolution.  Again, the court has asked for the respondents to argue first that they do indeed have standing.  If they are found not to, that would end the case and the lower court's decision would stand.

Leonard says:

At the end of the day, I don’t believe the Supreme Court will find that the US solicitor general lacks standing to bring these cases before it. The number of federal district courts that have ruled against the constitutionality of Section 3 is steadily mounting, more lawsuits are in the pipeline, and a nationwide resolution of its constitutionality is needed.

As a result, my conclusion is that the court will likely proceed to the merits on Windsor, and I think there is a good chance it will decide, by at least a vote of 5-4, that the lower courts are correct in holding it unconstitutional. The progress of the marriage equality movement may help to influence the court in reaching that conclusion. As of January 1, same-sex marriage will be legal in nine states and the District of Columbia, and if Judge Walker’s ruling eventually goes into effect, in California as well. As the proportion of the country living in marriage equality states increases, the “anti-democratic” effect of a Supreme Court ruling on this issue decreases.

Read the entire article here.

What SCOTUS Said

Here are the two postings from SCOTUS regarding Marriage Equality:

12-144       HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.

                   The petition for a writ of certiorari is granted.  In

             addition to the question presented by the petition, the parties
             are directed to brief and argue the following question:  Whether

             petitioners have standing under Article III, §2 of the

             Constitution in this case.
12-307       UNITED STATES V. WINDSOR, EDITH S., ET AL.

                 The petition for a writ of certiorari is granted.  In
             addition to the question presented by the petition, the
             parties are directed to brief and argue the following
             questions: Whether the Executive Branch’s agreement with the
             court below that DOMA is unconstitutional deprives this Court of
             jurisdiction to decide this case; and whether the Bipartisan
             Legal Advisory Group of the United States House of
             Representatives has Article III standing in this case.

What in Means:

PROP 8: (12-144)

In the first decision the court has agreed to hear the Prop 8 case.  That is bad news for Californians who were hoping they would refuse to hear it.  If they did refuse marriage for all would have resumed in California very quickly.  HOWEVER there is a hopeful part.

In directing the petitioners to argue whether they have standing, there is a very big out.  California refused to argue against Prop 8, which reversed marriage equality in California by popular vote.  The State was saying tacitly "we want this to be overturned."  California, under Gov. Schwarzenegger, saw gay marriage as in the best interest of the state.  The people who opposed marriage equality were then forced to defend their position.  They were granted "standing", that is the right to pick up the state's role in defending the proposition, by the US 9th Circuit Court of Appeals.  The ninth circuit upheld the State Supreme Court decision that Prop 8 was unconstitutional.  But they also issued a stay of overturning the marriage ban pending the Supreme Court decision.

In raising the question of standing once more, it is possible that SCOTUS could rule that the petitioners cannot, in the absence of the State of California, proceed. If they do, it's done. The decision stands and gay marriage resumes in California.  If the petitioners do have the right to argue, then a ruling on Prop 8, up or down, will be rendered.

DOMA: (12-307)

The Defense of Marriage Act, ironically named from the point of view of gay and lesbian Americans, denies federal rights and responsibilities to gay couples.

The conservative leaning court is of concern.  However we must remember that they found a way to allow "Obamacare" to stand in the face of vocal opposition from the right.

There are some big "outs" for SCOTUS in the questions included in the writ of centoriari.  This one is too complex for me.  I need to read some more. But, if the court were to decide that it could not decide, as silly as that sounds, it could allow them to kick this can down the road.

The arguments will happen in March and a decision will be rendered in June.

I only hope that reading one more explanation of this will not confuse my readers.  In the meantime, here is the perfect picture to support the right to marry.  I suspect it will challenge the stereotypes of many.  This couple is applying for a marriage license on the first day of availability in the state of Washington.