Tomorrow morning starting at 10, the Justices return for day 2 of their gay marriage marathon. In United States v. Windsor, they will decide whether the federal government must recognize the marriage, valid under New York law, of Edie Windsor (above, R) and the late Thea Spyer (L). (Photo taken early in their 44-year relationship.) The Court will first spend 50 minutes on consideration of jurisdiction and standing questions, followed by an hour of argument on DoMA’s constitutionality.
Jurisdiction and standing
As in the Prop 8 case, the Justices asked the parties to address questions related to whether the case is even properly before them. Here, the central issue is whether either of the two parties that filed cert petitions could properly do so. The Court specified these two Article III questions:
First, “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case.”
Second, “whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case.” [BLAG - the misnamed entity controlled by House Republicans - intervened to defend DoMA after the Justice Department switched its initial position and conceded that the statute is unconstitutional.]
Neither those challenging DoMA nor those defending it want a finding of no jurisdiction. In Perry, the plaintiffs would be happy with a ruling that Prop 8′s defenders lack standing since the effect would be to reinstate a California-specific trial court finding that they won. But the Windsor plaintiffs are challenging a federal law; if the Court sidesteps a ruling on its constitutionality, the law of marriage recognition would be left in a kind of political limbo. Even if the Obama Administration declined to enforce DoMA, there would be no national precedent to prevent a future President from reversing that decision. (Currently, the Justice Department is continuing to enforce DoMA – at least when there is no way around it – but it is not defending its validity in court.)
Since both parties believe that the Court does have jurisdiction, the Justices appointed federal courts expert Professor Vicki Jackson (formerly a colleague at Georgetown, now at Harvard) to make the case for lack of jurisdiction. (A detailed analysis of the legal questions is here.) In this first segment of the hearing, Jackson will argue first, followed by Deputy Solicitor General Sri Srinivasan, and then by Paul Clement, who represents BLAG.
On to the merits -
During argument in the Prop 8 case, the Justices didn’t spend much time on the niceties of Equal Protection law. Solicitor General Verrelli argued that “every warning flag that warrants exacting scrutiny” applies to sexual orientation discrimination. In other words, he was arguing that the Court should apply heightened scrutiny, which amounts to a (difficult to rebut) presumption of unconstitutionality. But the Justices weren’t biting; they seemed much more concerned with whether they could avoid striking down the roughly 40 state laws that ban same-sex marriage.
Tomorrow the law being challenged is very different from Prop 8. Section 3 of DoMA has no impact on state laws, one way or another. Its sole effect – but it is a huge one – is to block the federal government from recognizing same-sex marriages that are indisputably valid under state law. (Nine states plus DC allow same-sex marriage.) In every other situation of conflicting state laws (first cousin or common law marriages, for example), the federal government accepts the state’s determination of validity.
The single most important task for the ACLU’s lawyers on Wednesday will be to drive home this point: You can interpret the Equal Protection Clause to strike down DoMA without forcing any state to change its laws in any way. That much is clearly true. The wrinkle in the logic is whether, if the Justices do adopt a heightened scrutiny approach to sexual orientation classifications, there is any realistic chance that a state law banning gay marriage could survive review if and when it reaches the Court. (This is the same question as presented by Prop 8, but Tuesday’s argument in that case strongly suggests that the Justices do not want to go there.)
This implicit tension regarding the standard of review may lead the Court back to a jurisprudential fudge, now ripening into old age after having first been utilized in a gay rights case in Justice Kennedy’s opinion in Romer v. Evans in 1996: the Court could find that DoMA is so irrational that it fails even the lowest level of review, which is normally extremely deferential to legislative determinations. The Justice Department is arguing that applying some form of heightened scrutiny is necessary to reach a conclusion that DoMA is unconstitutional; in other words, the Solicitor General concedes that DoMA is valid if the most deferential review level is applied. SG Verrelli, who will be arguing this phase of the case, will surely get some tough questions on that point.
By contrast, the attorney for the plaintiff Edie Windsor – Robbie Kaplan, a partner at Paul Weiss arguing as cooperating counsel for the ACLU – has no such concession to worry about. She just has to persuade the Justices to thread all the needles that produce a finding of unconstitutionality, one way or another, under one or another test. No sweat, right?