The REAL argument is today (and with luck, the Perry case could go away)

by on March 29, 2013  •  In Constitutional law, Marriage, Supreme Court
Supreme Court 2

Friday at 10 a.m. is the traditional conferencing time for the Justices of the Supreme Court, and they are gathering this morning to preliminarily decide the outcomes of the cases in which they heard argument this week. These early outcomes can change; the result in Bowers v. Hardwick famously flipped from good to bad when Justice Lewis Powell reconsidered his vote over the weekend and changed sides. But the bottom line results in both the Prop 8 and DoMA cases may have been determined by the time you read this.

No decisions are announced, of course, until the opinions have been finalized, a lengthy process during which Justices continue to refine or even reverse their views. And it looks quite likely that there will be multiple opinions in these cases.  There might be a shortcut, though, and it would imho be a happy one: the Prop 8 case could drop off the Justices’ workload very quickly, in a way that would leave in place the Court of Appeals ruling that it is unconstitutional.

During oral argument in Hollingsworth v. Perry, Justice Kennedy wondered aloud whether the writ of certiorari should be dismissed as improvidently granted, an option that the Court occasionally utilizes when, after briefing and argument, it concludes that for some reason the particular case or question presented is not ready for prime time. A dismissal as improvidently granted (DIG) would mean that the Justices would not have to decide even the threshold standing issues in Perry, much less the constitutionality of any state laws. After Justice Kennedy’s comment, Justice Sotomayor seemed to buttress this possibility by expressing her own hesitation to force a decision on the constitutionality of marriage bans, especially for states other than California.

The backdrop for this is that it is now blazingly obvious that only the conservative Justices wanted to hear the case. That should come as no surprise, since they probably felt (and feel) reasonably confident that Justice Kennedy is not going to rule in 2013 that 40 or so state marriage laws are unconstitutional, as the Perry lawyers have sought. A resounding defeat for gay marriage supporters in Perry is about the only thing that could slow down what seems like truly extraordinary momentum in public opinion, even if less so in state law, toward allowing gay couples to marry. Ultimately that bucket of cold water would be unlikely to affect more than speed, and might just make the Court itself seem out of tune with American culture. But it would not be a happy moment, to put it mildly.

So, why wouldn’t the four liberal Justices leap at the opportunity to join Kennedy and DIG Perry, leaving the much better vehicle – United States v. Windsor - to command center stage in the marriage @ the Supreme Court marathon? Strong customs of mutual respect, including self-restraint, are important to the functioning and legitimacy of the Court. (If you want to see what governance looks like without them, check out Congress.) One such custom is that, because a vote of four Justices suffices to grant cert, the Court will normally follow through and decide a case after it is briefed and argued, even if five Justices opposed cert. In other words, if a simple majority of Justices routinely joined to DIG a case that they didn’t want to consider in the first place, the “rule of four” for granting cert would be effectively nullified.

Nonetheless, there are reasons to hope that the Justices could be deciding this morning to DIG Perry. First, as Justice Stevens noted almost 40 years ago (ironically in a sodomy case), the custom of deference to the “rule of four” should not absolutely bar the Court from later deciding by a 5 to 4 vote to DIG, so long as the majority has concluded in good faith that it is unwise to proceed further in a particular case and DIG’ing does not become a tactical weapon in the political debates within the Court. (New York v. Uplinger, 467 U.S. 246, 251 (1984)). Second, we don’t actually know whether Justice Kennedy voted to grant cert or not. If he did, then the unwritten rule that a DIG should not happen unless a Justice who initially wanted to consider the case has changed his or her mind would be satisfied.

Bottom line – I think that there is at best a 50-50 chance, probably less, that all the necessary stars will align to give the Court a way out of deciding what I have always believed to be an ill-considered case. It is not impossible, however.  And if this is the outcome in Perry, it could be announced as soon as Monday morning. (Yes, Easter Monday.) Biggest problem with that scenario: it wouldn’t give Justice Scalia enough time to write a scathingly sarcastic dissent.

Still, cross your fingers.



4 Responses to The REAL argument is today (and with luck, the Perry case could go away)

  1. Jeremy Bishop March 29, 2013 at 9:38 AM

    Interesting comments, Nan.

    I’ve often thought Perry was not the case to bring up. I thought it could be quite disastrous before, but luckily, public opinion and the wins at the ballot box in November I believe will preclude the Justices from making a bad decision. A DIG in this case to me seems like a win in the long-run.

    What is your opinion on the Windsor case?

    • Nan Hunter March 29, 2013 at 9:45 AM

      I think we will win Windsor, hopefully with a majority opinion that is based on Equal Protection grounds.

  2. DH Mazur March 29, 2013 at 11:39 AM

    In the Windsor oral argument, did you notice that Mr. Clement seemed to be laying the groundwork for a sort of “reverse DOMA,” should DOMA itself be invalidated? At pages 111-12 of the transcript, he offers this justification for DOMA:

    “We don’t want somebody, if they are going to be transferred in the military from West Point to Fort Sill in Oklahoma, to resist the transfer because they are going to lose some benefits.”

    Either he doesn’t understand that federal law, not state law, controls military benefits (unlikely), or he is suggesting that, in a DOMA-free world, service members would receive federal military benefits only if they happened to be stationed in a state that recognized their marriages. DOMA is rational, in Clement’s view, because it denies benefits to married same-sex couples at all times and in all places, instead of granting and then withholding benefits based on the state of assignment.

    Crazy? But Justice Alito floats the same “reverse DOMA” idea. At pages 100-01, Alito assumes that if Windsor and her spouse had moved to North Carolina, she no longer would have been entitled to the federal estate tax deduction for married couples. What he’s saying is essentially this: Even without DOMA, the federal government will recognize your lawful state marriage only if you continue to reside in that state. If you move to a state that does not recognize your marriage, the federal government will also stop recognizing your marriage. (Inexplicably, Windsor’s lawyer seems to agree.) At page 85, Alito also vaguely suggests that an injured gay service member would have to be hospitalized “in a state that allows same-sex marriage” in order to be visited by a spouse.

    This makes no sense, unless you’re trying to set the stage for a post-repeal argument that 1) the federal government should only recognize marriages that are also recognized by the state in which a couple resides and 2) states therefore have the power to step between citizens and the federal government, invalidate existing marriages from other states, and terminate federal benefits.

    No one is asking whether a repeal of DOMA means that same-sex couples must live in one of a limited number of states in order to have their marriages recognized by the federal government. I believe that’s the wrong interpretation, but I suspect this argument is coming.

    A law professor, former Air Force officer, and author of “A More Perfect Military: How the Constitution Can Make Our Military Stronger”

  3. Nan Hunter March 29, 2013 at 4:40 PM

    Hi Diane -

    I think that “reverse DOMA”, as you call it, is exactly what is coming. I don’t know what the rule of recognition is for military spouses, but it is my understanding that at least for some federal benefits programs, whether one is married does depend on whether one’s state of residence recognizes the marriage. This is about to become a big issue.

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