Article provided courtesy of The Nation
Nan Hunter for TheNation.com
March 4, 2013 - 4:02 PM ET
http://www.thenation.com/blog/173182/will-supreme-court-be-left-behind-gay-marriage
In case you haven’t noticed, the biggest question facing the Supreme
Court when it decides the gay marriage cases this spring has become
whether it can rise to the level of LGBT rights ferocity already
achieved by American business leaders, moderate Republicans and the
Obama administration. By the end of last week, when all the amicus
briefs in support of striking down California’s Prop 8 and the Defense
of Marriage Act (DOMA) had been filed, support for marriage equality
seemed to have been transformed into the new normal—at least outside the
confines of the Court.
In fact, judging from the press coverage of the briefs, if the
justices don’t rule in favor of gay marriage, it is the Court that will
look bad. This perception is an incredible achievement, a brilliant
exercise in political framing by the lawyers and legal organizations
behind the two cases, who mobilized the amicus show of force. The
business brief and the Republican brief, especially, are clearly
designed to provide political cover for the Court’s five conservative
Justices.
While nothing is certain, there is virtually unanimous agreement
among lawyers and law professors that the tougher case for gay rights
groups is the challenge to Prop 8 rather than the one to DOMA. The Prop 8
case raises the question of whether all of the forty other state laws
banning gay marriage are constitutional, while DOMA implicates only a
federal recognition policy that leaves variance in state laws intact.
The best hope for winning Hollingsworth v. Perry, the Prop 8 case,
remains either securing a narrow ruling that invalidates only the
California law, or persuading the Court that it need not reach the
merits at all, relying on the argument that those defending Prop 8 lack
the necessary standing because they are private parties that have no
authority to enforce it. (The governor and attorney general of
California declined to defend the law.) From the beginning, though, the
Ted Olson-David Boies strange bedfellows team that brought the case has
argued that every law banning gay marriage should be struck down. Even
six months ago, that position seemed too radical to attract much support
outside the circle of true believers.
Now, however, a ruling of national scope is precisely the outcome
endorsed in the brief filed by 100 corporations and in the Republican
brief signed by luminaries including former White House officials Ken
Duberstein (Reagan Chief of Staff) and Stephen Hadley (Bush National
Security Advisor); Iraq War hawk Paul Wolfowitz; two Chairs of the
Council of Economic Advisers under Bush; the former Director of the
Congressional Budget Office; a Justice Department official from the
Nixon Administration; the former Chair of the Federal Communications
Commission, who is also Colin Powell’s son; and four former Republican
governors. And, oh yes, Clint Eastwood.
What happened to make possible this conservative blessing of what had
seemed to many like such a radical outcome? Fundamentally, the only
change is that the political gestalt has shifted so that what was always
a conservative claim—to gain access to the core institution for
privatizing a broad range of social functions—is increasingly being
endorsed by conservatives. Sooner or later, it had to happen.
Nonetheless, it is unquestionably true that the conventional
understanding of where the center of American politics stands on this
issue has dramatically moved. The reasons are many. A cumulative
process, especially since 2009, has driven support for legalizing gay
marriage ever higher in public opinion polls. The shock of the 2008
defeat in California catalyzed a younger generation of gay men and
lesbians, with ardent support from straight allies, to insist on
marriage as the premier gay rights issue. Since that election, gay
groups have won a series of state-level battles, as several legislatures
legalized equal marriage, including New York (with one chamber
controlled by Republicans). At the national level, Congress repealed
Don’t Ask Don’t Tell.
The icing on the wedding cake came with last November’s election.
Voters in three states affirmatively chose to adopt gay marriage, and
Minnesota voters rejected the attempt to pass a Prop 8-like measure.
Moreover, the first President ever to endorse marriage equality was
handily re-elected, without his position ever surfacing as a
controversial issue in the campaign. Indeed, support for gay marriage,
along with immigration reform, has become the litmus test most
frequently identified in the press for assessing whether the Republican
Party can rebrand itself as moderate and escape terminal fuddy-duddyism.
Of course, the outcome in the Supreme Court will be decided not by
polls or pundits but by nine individuals; actually by six, since there
is no question as to which result Justices Scalia, Thomas and Alito will
endorse. But Justice Kennedy, who wrote the two strongest opinions
supporting gay equality in past cases, and even Chief Justice Roberts,
who has no real track record in this area, are likely to take seriously
the libertarian and business arguments for allowing gay couples to
marry. Not doing so would continue the house-divided status quo, in
which one’s marital status and even the possibility of divorce depends
on an increasingly irrational mélange of different state laws. And, as
the firepower across the political spectrum in support of gay marriage
so dramatically demonstrates, the ultimate resolution is inevitable.
Best just to bite the bullet and do it now.
If this all sounds a bit too good to be true, maybe it is. Justice
Kennedy is also a strong believer in state sovereignty, and a decision
forcing legal change in forty-one states may be too much for him to
join. The great bulk of the US population lives in a jurisdiction where
gay marriage is not legal. The defenders of Prop 8 will to try assuage
the justices that if the political process is left to work, more and
more states will re-amend their constitutions and change their statutes
to gradually adopt gay marriage laws on their own, without judicial
“interference.” In addition, the liberal justices who support gay
marriage may worry that a sweeping Roe v. Wade-like decision will
trigger a massive backlash. These considerations combine to make that
standing argument sure seem like a nice way to kick a vexatious can down
the road.
This is the new political environment in which the legal arguments
about marriage equality will succeed or fail. But that might not be
enough to put gay marriage supporters over the top. Supreme Court
justices breathe the same cultural air that the rest of us do, but they
don’t have the luxury that politicians have to just say—hey, guess what,
I’ve changed my mind on that one. The substantive legal arguments have
to be both persuasive and consistent with other applications of the same
body of doctrine. Even if a judge wants to see a certain result, the
opinion “has to write”—the analytic structure has to support that
result.
The substantive questions in the DOMA case (which also has a
jurisdiction/standing question, though it is probably less likely to
prove decisive than the one in Perry) all arise from the Equal
Protection Clause of the Fourteenth Amendment. In previous civil rights
cases, the Court has developed a set of increasingly stringent levels
for reviewing legislative classifications, with racial classifications
receiving the highest level, or strict scrutiny; and gender
classifications requiring heightened scrutiny, which is somewhat less
rigorous. The baseline and point of comparison for both is called
rational basis review, a lenient standard under which courts defer to
legislative judgment if the distinction drawn has a rational
relationship to any legitimate government interest.
So far, the Court has not explicitly applied either heightened or
strict scrutiny to sexual orientation discrimination, but it did
nonetheless strike down an anti-gay state law by applying what seemed to
be a heightened version of rational basis review. As a result of the
Supreme Court not being more transparent in its approach in gay cases,
the lower federal courts are all over the board in terms of whether they
apply heightened scrutiny, rational basis review with bite, or
deferential rational basis review.
The selection of the standard is critically important because it
usually determines the outcome as to whether a law is ruled
unconstitutional. For example, the Justice Department argues in its
brief that DOMA is unconstitutional if heightened scrutiny is applied,
but valid if rational basis review is used, unless the Court uses
heightened rational basis, in which case DOMA is unconstitutional after
all. (Are you still with me?) The most important outcome of the DOMA
case for the future of gay rights law is that the Court is likely to
declare itself on which standard should be applied to any law that
discriminates based on sexual orientation.
It is also true in Perry, the Prop 8 case, that the Court could
determine the law’s constitutionality by using an Equal Protection
analysis. However, in that case there is another doctrinal option. Under
the Due Process Clause (i.e., no state can deprive an individual of
liberty without due process of law), the Court has held repeatedly that
the right to marry is a fundamental right. When a law deprives persons
of a fundamental liberty right, the denial must be narrowly tailored to
achieve a compelling state interest.
Until just a few years ago, the majority of courts deciding gay
marriage cases ruled that although there was a right to marry, there was
not a right to same-sex marriage. Those two examples, judge after judge
said, were just different, essentially and tautologically so. But U.S.
District Court Judge Vaughn Walker, who conducted the trial in the Prop 8
case, ruled that one basis for the law’s unconstitutionality is its
violation of the due process liberty right to marry.
The Olson-Boies brief in the Supreme Court opens with this liberty
claim; the equal protection argument comes second. Usually litigators
begin a brief with what they believe is their strongest argument,
suggesting that Olson may push the Court for a victory based on
recognition that the marriage-childbearing link being pressed by Prop
8’s defenders doesn’t justify denial of a right as important as
marriage. Indeed, the first sentence in the brief quotes from a 1978
Supreme Court decision stating that marriage is “the most important
relation in life,” a quotation repeated twice more in the first four
pages of the brief.
If Perry is decided on liberty grounds, its scope will be limited to
marriage rather than applying to all sexual orientation classifications.
But for many people, that would be like saying that a truce applies
only to ending a war, rather than preventing all future battles. If gay
couples can’t be excluded from marriage, what forms of government
discrimination could possibly be constitutional?
The next stage in this saga is that the Court will hear oral
arguments in Perry on March 26 and in Windsor v. United States, the DOMA
case, on March 27, in what will be a feast for constitutional law
buffs. Based on the questions asked by the justices, the betting is
certain to be fast and furious on how the cases will come out. That
enterprise, however, is notoriously prone to mistakes, given how often
the questions reflect a Justice playing devil’s advocate rather than
tipping her hand.
Because these cases will be among the last argued during the current
term, they will likely be among the last in which the opinions are
issued. There is no deadline for when the Court must decide cases, but
it will announce all of the term’s opinions before leaving for the
summer. For gay marriage, that almost certainly portends nuptials—or
not—in June.
ABOUT NAN HUNTER
Nan Hunter is Professor of Law at Georgetown
University Law Center and Associate Dean for Graduate Programs. She also
consults with the Williams Institute at UCLA as its Legal Scholarship
Director. She co-authored the law school casebook Sexuality, Gender and the Law,
now in its third edition, and has published dozens of law review
articles in both sexuality and gender law and health law. During the
Clinton Administration, she served as Deputy General Counsel at the US
Department of Health and Human Services. Her awards include the Pioneer
of Courage award from the American Foundation for AIDS Research and the
first Dan Bradley award from the National LGBT Bar Association. She
blogs at www.hunterofjustice.com.
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