SCOTUS Close to Decision on Same-Sex Marriage Cases

This is a guest post from Wayne State Law Professor Robert Sedler who, from time to time, breaks down the constitutional aspects of some of the weighty cases we follow over here at the Law Blogger.

The United States Supreme Court is considering two cases presenting constitutional challenges to bans on same sex marriage. Decisions in these cases are expected in the next few weeks as the High Court concludes the current term. 

In both cases there are procedural issues relating to standing - a matter that goes to the constitutional jurisdiction of a federal court to hear a case or an appeal.  Depending on how the Court resolves the procedural issues, it may not reach the merits in either or both cases.

In hearing the oral arguments in both cases, the Court separated the argument on the standing issue from the argument on the merits. Moreover, neither case directly presents the question of whether a ban on same-sex marriage is unconstitutional across the board.  If the Court limits itself to deciding the precise constitutional issues presented in both cases, it will not have definitively resolved the question of whether a ban on same sex marriage is unconstitutional.

In Hollingsworth v Perry, 671 F.3d 1052 (9th Cir. 2012), the Ninth Circuit Court of Appeals held that where the California Constitution was interpreted by the Supreme Court of California as guaranteeing the right to marry to opposite-sex and same-sex couples alike, and the voters of California then adopted Proposition 8, which amended the California Constitution to eliminate the right of same sex couples to marry, that amendment violated the Fourteenth Amendment’s equal protection clause. This was because the Court concluded that the amendment served no purpose and had no effect other than to lessen the status and dignity of gay and lesbian persons in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples.

In this case, after the District Court ruled in favor of the plaintiffs challenging the ban on same sex marriage, the Governor and Attorney-General refused to appeal. Under California law, the official sponsors of the ban were authorized to defend it in court, and the Ninth Circuit held that the official sponsors of the ban had standing to take the appeal.

The SCOTUS must first decide whether the official sponsors of the ban have standing to take the appeal. If the Supreme Court concludes that they do not have standing to take the appeal, the result will be that the decision of the District Court holding the ban unconstitutional stands, and same sex marriage will now be legal in California.

If the Court concludes that they do have standing to take the appeal, the Court will reach the merits.  It could affirm the decision of the Ninth Circuit on the narrow ground of that decision, relating to the taking away of the right to same sex marriage by the amendment to the state constitution. That decision would apply only to California. Or it could accept the argument of the official sponsors that the voters of California did not deny equal protection to same sex couples when it made the determination to preserve traditional marriage between a man and a woman as the sole basis for marriage in the state. Or the Court could render a decision going beyond the issue presented in that case and hold that the equal protection clause prohibits the state from limiting the right to marry to opposite sex couples and denying it to same sex couples.

In United States v Windsor, 699 F.3d 169 (2d Cir. 2012), the Second Circuit Court of Appeals held unconstitutional the federal Defense of Marriage Act (DOMA), 1 U.S.C. sec. 7, which defines marriage as “only a legal union between one man and one woman,” insofar as it was applied to deny recognition for federal tax purposes to a same sex marriage that was legal under the law of the state where the same sex couple resides.

In rendering its decision, the Second Circuit held that discrimination on the basis of sexual orientation was subject to intermediate scrutiny under the “important and substantial” relationship test, and it rejected all the justifications that were asserted in defense of a ban on same sex marriage. It also noted that Congress and the Court has historically deferred to state domestic relations law.

The case presented two interrelated procedural issues. The suit was brought by a New York woman who was denied a marital tax from the federal estate tax when her spouse denied, even though the validity of their marriage was recognized by New York, the state where the couple resided. The United States defended the case in the District Court up to a point, but then declined to defend it further.

Members of the House of Representatives, referred to as the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) intervened as a party defendant to defend DOMA. The United States switched sides to advocate that the statute be ruled unconstitutional. At the same time, the United States took the position that it would continue to enforce DOMA unless and until a federal court held that it was unconstitutional.

 

When the case came before the SCOTUS, the Court appointed an amicus curiae to argue that the Court could not hear the appeal, because there was no case or controversy within the constitutional jurisdiction of the federal courts. The United States argued that the Court should hear the appeal and hold that DOMA was unconstitutional as applied to deny recognition to a marriage that was legal under the law of the state where the couple resided, and further argued that BLAG did not have standing, because it was the responsibility of the executive branch alone to defend the constitutionality of a federal law. BLAG argued that the House of Representatives had standing to defend the constitutionality of a federal law when the executive branch agreed with the plaintiff that the law is unconstitutional.

SCOTUS must first decide whether there is a case or controversy, since the United States, represented by the Attorney-General refused to defend the suit. If the Supreme Court dismisses the appeal on the ground that there is no case or controversy, presumably the District Court would then enter a judgment for the plaintiff, since the United States has refused to defend the suit. The constitutional question would remain unresolved. The position of the United States on the appeal - that the Court should hear the appeal, but that BLAG does not have standing to defend DOMA - would require the Court to appoint an amicus curiae to defend the constitutionality of DOMA. If the Court decides to hear the appeal and further decides that BLAG has standing to defend DOMA, then the case would be ready for a determination on the merits.

The Court could hold that DOMA is unconstitutional as applied to deny federal recognition to a same sex marriage that is legal under the law of the state where the couple resided on the ground that the refusal of the federal government to recognize such a marriage would violate the state sovereignty guarantee of the Tenth Amendment.  State sovereignty, it may be noted, was the basis for that part of the Sebelius decision, holding that Congress could not compel the states to agree to the Medicaid expansion of the ACA or lose all Medicaid funding.

At the oral argument before SCOTUS, BLAG argued that federal law could define marriage for purposes of federal law differently from the way a state defined marriage for purposes of state law, and this issue took up most of BLAG’s argument.  The issue also came up at various times in the argument of the United States and of the lawyer for the plaintiff.

In a slight variation of the state sovereignty rationale, the Court could hold that it is violative of equal protection for Congress to discriminate against marriages that are legal in the state where the parties reside. This is the precise issue involved in Windsor, and the decision need go no further than that.

On the other hand, the Court could reject the federalism argument, reach the equal protection issue, (5th Amendment equal protection, because DOMA is a federal law), and hold that Congress did not deny equal protection to same sex couples when it made the determination to preserve traditional marriage between a man and a woman as the sole basis for marriage under federal law.

The possible SCOTUS outcomes may be summarized as follows:

     1) The Court resolves both cases on procedural grounds and does not hear the appeals. Same-sex    marriage is now legal in California, and Ms.Windsor gets a refund of federal estate tax.

     2)  The Court could render a narrow constitutional decision favorable to same-sex marriage in both cases. In Perry it could hold that amending the state constitution to eliminate the right of same sex couples to marry violated equal protection, and in Windsor, it could hold that the application of DOMA to deny federal recognition to a same sex marriage that is valid under the law of the state where the parties reside violates 10th Amendment state sovereignty and/or equal protection.

     3)  The Court could resolve one case on a procedural ground and the in the other case render a constitutional decision favorable to same sex marriage.

     4)  The Court could hold that a denial of the right to marry to same sex couples violates equal protection, and so protect the right to same sex marriage throughout the United States.

     5)  The Court could hold that the denial of the right to marry to same sex couples does not violate equal protection, so that the issue is removed from the constitutional equation, and whether or not same sex couples will be able to marry will depend on the law of each state.

With this road map from Professor Sedler, we here at the Law Blogger will await this momentous decision.  Last June it was Obamacare; this June it is same-sex marriage.

October 2013 Post Script: For readers that are interested in a personal portrait of one of the litigants behind these consolidated cases, take a look at this piece on Edith Windsor from The New Yorker.  Windsor was the litigant that successfully challenged DOMA.  The New Yorker piece details the tortured path her case took to get to the SCOTUS.

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Posted in: Hollingsworth v Perry,Law Professor Robert Sedler,same-sex marriage,SCOTUS

SCOTUS Ends Term With Historic Decisions

Chief Justice John Roberts

On the penultimate business day in June, the United States Supreme Court concluded its term with the announcement of its historic decision in National Federation of Independent Business v Sebelius; the Obamacare case that tested the constitutionality of the Affordable Care Act.  As unlikely a jurist as could be found, a visibly uncomfortable Chief Justice John Roberts, announced that Obamacare was upheld in a 5-4 opinion that he authored.

The ACA was upheld on the somewhat questionable grounds of Congress' power to levy a tax.  More than a few legal scholars characterize the so-called "individual mandate" requiring individuals to secure health insurance or pay a penalty, as Congress levying a punishment, not a tax.  The consensus among these same scholars, however, is that challenging the constitutionality of the ACA was a colossal waste of time; legislation of this nature has routinely passed constitutional muster dating back to the social programs of the 1930s.

We here at the Law Blogger cannot wait for the contribution from our guest blogger, Professor Robert Sedler, to weigh in on this decision.  Stay tuned for that.

Here is a summary of some of the more significant decisions issued by SCOTUS this term:

• Churches are entitled to a "ministerial exception" to their adherence to state and federal employment laws, enabling them to hire whomever they want to stand at the pulpit; the remaining question in this case is how deep into the employee roster this ministerial exception goes.

• Police must secure a warrant, as required under the 4th Amendment's "search and seizure" clause, prior to attaching a GPS tracking device on a vehicle.

• Corporations and unions can spend unlimited amounts of money on political campaigns as the Court upheld it's game-changing Citizens United decision and applied it to a Montana law.

• An accused has a right to the effective assistance of legal counsel under the Sixth Amendment during the criminal plea-bargaining process.

• The prosecutor's expert witness may discuss laboratory test results [usually involving blood samples and DNA] without the live testimony of lab analysis that assisted in processing the sample, and this does not violate the "confrontation clause" of the Fifth Amendment.

• State criminal laws that require that a juvenile convicted of murder be sentenced to life in prison without the possibility of parole are unconstitutional.

The justices will reconvene for the 2012-2013 term in October.  Must be nice to be one of nine justices on the High Court.  After deciding such weighty decisions that affect our lives, you really get to enjoy your summer!

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Posted in: Chief Justice John Roberts,Fifth Amendment.,Fourth Amendment,Law Professor Robert Sedler,SCOTUS,Sixth Amendment

SCOTUS' Judicial Review of Federal Health Care Legislation

This is a guest blog post on SCOTUS' historic and extensive judicial review of the health care legislation.  Now that the dust is settling after oral arguments in March, we here at the Law Blogger have enlisted Wayne State University Law Professor Robert Sedler, who teaches Constitutional Law, to provide his expert analysis on this topic.  Professor Sedler has commented widely on this issue currently pending before the U.S. Supreme Court.

The constitutional challenge made to the health care statutes has been to the so-called “individual mandate” in PPACA as being beyond the constitutional power of Congress under the commerce clause. The opponents contend that this provision is unconstitutional and that the rest of the act cannot be severed from this provision, so that the entire Act fails.

The High Court took the unusual step of reserving three days in March for oral arguments in review of the case; normally advocates get an hour to present their arguments and attempt to convince the bench.

Sometimes in oral argument, the position of judges on the issue in question is clear; sometimes it is not; and sometimes, there are surprises both ways.

In the arguments in this case, the questions of six Justices were so one-sided that their position was clear, and this coincided with their ideological disposition.  For example, Justices Scalia and Alito sharply questioned the government's lawyer [the Solicitor General; the petitioner in this case] and either didn't ask questions, or asked only soft questions of the respondents’ lawyers. Justice Thomas never asks questions, but he is certain to vote with Scalia and Alito.

Scalia and Alito made it clear that they consider the individual mandate unconstitutional and are disposed to invalidate the entire law.  Justices Ginsburg, Breyer, Sotomayor and Kagen did just the reverse, strongly questioning the respondents’ lawyers and using the questions to make their points, just as Scalia and Alito did in their questioning of the government's lawyer. The liberal bloc will doubtless vote to uphold the individual mandate.

Justice Roberts was tougher on the Solicitor General, although he asked some questions of the challengers’ lawyers.  For his part, Justice Kennedy asked hard questions of the lawyers on both sides. and, as is so often the case, may be the swing Justice.

The possible outcomes are as follows:

        The individual mandate is constitutional. Kennedy joins the four liberals. Roberts joins the three conservatives in dissent, or may concur with Kennedy to make it 6-3 rather than 5-4.

        Justices Kennedy and Roberts join the three conservatives to hold the individual mandate unconstitutional and that the rest of the act cannot be severed, so that the entire act falls.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that all of the rest of the act is severable. This is what the Eleventh Circuit held.

        Justices Kennedy and Roberts hold that the individual mandate is unconstitutional, but that the rest of the act can be severed except for the requirement that the insurance companies insure everyone despite a pre-existing condition, and that ratings for individual policies be community wide. This was the government's position.

Predictions as to what the High Court will do - and there have been many- are completely speculative and unnecessary. The Court will decide the case by the end of June, with several of the Justices reading their concurring or dissenting opinions from the bench in the Chamber of the Supreme Court.  At that time, on that date, we will know the fate of the federal health care statutes.

Law Blogger Note:  although the preliminary voting among the Justices in conference took place at the end of March, the Justices sometimes change their minds, and thus their vote.  No one but the Justices themselves attend these case conferences.  Also, leaks among the law clerks and court staffers are  exceedingly rare.  We will all have to stay tuned.

 

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Posted in: health care,individual mandate,judicial review,Law Blogger,Law Professor Robert Sedler,lawyer,SCOTUS,Solicitor General,Wayne State University Law School