Marriage @ the Supreme Court: The homestretch

by on March 22, 2013  •  In DoMA, Marriage, Supreme Court

 Last night (which was cold here in DC), the line began to form for seats to hear oral arguments in the two gay marriage cases that the Supreme Court will consider next week. First up on Tuesday morning will be the challenge to Prop 8; on Wednesday, the Court will hear the DoMA case. The ACLU lawyers who brought the DoMA challenge did a moot of their arguments this morning at Georgetown Law Center, and – promising confidentiality – more than 100 Georgetown law students got to listen. Plaintiff Edith Windsor attended, and students lined up afterward to speak with the woman who inspired what may become one of the most important civil rights cases in our lifetimes.

Refereshing the basics, here’s a summary of the briefs that I first posted at The Nation:

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 antigay 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 US 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?

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.

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