Everyone knows that there is an excellent chance that the Prop 8 case will be resolved, at least in part, on standing grounds. But the rumor sweeping DC this past week has been that the Supreme Court will surprise everyone by ruling that it lacks jurisdiction to decide the constitutionality of DoMA. Is there any reason to take this rumor seriously? I have no idea.
Following are excerpts from UCLA Law Professor Adam Winkler’s explication in The New Republic of how this scenario could play out:
…If [Justice Kennedy] could avoid a substantive ruling [on the constitutionality of DoMA], the nation’s marriage laws would be unaffected, left for the democratic process to revise or affirm as we the people determine. Some of the justices—we don’t know who—signaled their interest in the procedural issues back when the Court first agreed to hear the DOMA case. The justices directed the advocates to address two such questions and even appointed a lawyer who hadn’t been involved in the controversy to participate in the arguments on them.
The first question was whether the Obama administration’s position that DOMA is unconstitutional deprived the Supreme Court of jurisdiction—or legal authority—to decide this case. Usually, the Department of Justice defends a law in court. If a ruling goes against DOJ, it appeals as the losing party. Yet in this case, the DOJ is arguably not a losing party: Its view of the law was actually adopted by the trial court when the judge ruled the law unconstitutional. In fact, there may not be any losing party. Both Edie Windsor, who challenged DOMA when she was denied the spousal estate tax exemption after her wife died, and the Department of Justice agreed on the outcome. If there’s no losing party, however, there’s no one with the authority to appeal the lower court’s ruling.
The second question was related to the first. Did the Bipartisan Legal Advisory Group established by the House of Representatives to defend the law when the administration declined, have standing to do that? The Court has occasionally allowed Congress to participate in litigation, but only when acting as “Congress.” In this case, however, the Senate declined to participate and BLAG, as it is known, only represents the House. This may not be enough to confer authority to BLAG to substitute in for the administration.
One doesn’t have to delve into the merits of these two procedural issues to see how they might be attractive to some members of the Court. If no one involved in the case was an appropriate party to defend the law on appeal, the Court would lack authority to rule on the merits of Edie Windsor’s challenge. Her case—and the several other challenges to DOMA currently waiting resolution by the Court—would be sent back down to the lower courts and all the appellate court rulings vacated. Windsor, who won at the trial court, would receive her refund for the estate taxes her spouse had to pay. Yet because the trial court’s ruling was only applicable to her, not to all lawfully married gay couples, DOMA would remain the law of the land.
Allowing DOMA to survive in this way might be an appealing “second-best” option for the Court’s conservatives. They might well prefer a clear ruling upholding DOMA but recognize that they don’t have five votes for that outcome. Kicking the case back to the trial court would enable the law to live on. Indeed, for conservative justices who, like Kennedy, might be concerned about how history will view them, this option might even be ideal. Their reputations won’t be tarnished nearly as much as if they voted to strike down the law.
DOMA would still be subject to future challenges of course. Any lawfully married gay couple denied some federal benefit could sue. They should win those cases, especially if the administration continues to refuse to defend the law. Yet no one would have the legal authority to appeal. DOMA would suffer a thousand minor cuts—there are over a thousand federal laws implicated by DOMA’s refusal to recognize gay marriages—and, maybe years from now, would be little more than a ghost of what it is today. But we might never have a definitive Supreme Court ruling on DOMA’s constitutionality.
There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.
This outcome could be a significant setback for the gay rights community. Ever since oral argument in March, gay rights activists have taken for granted that DOMA will be voided. And they’ve been buoyed by a number of recent successes, like the four states that voted for marriage equality in the 2012 election and the repeal of Don’t Ask, Don’t Tell. Anything less than a win in the DOMA case will be a bitter pill.
The administration would be in an especially tough position. The DOJ has said it will continue to enforce DOMA in practice until there’s a definitive ruling on the law’s constitutionality, but there may never be such a ruling. The administration could decide to reverse course and no longer enforce DOMA at all, but this would still leave a patchwork of federal laws relating to marriage because the administration can’t tell independent agencies, like the Social Security Administration, how to apply the law…
A decision not to enforce DOMA would also risk establishing a dangerous precedent. The reason why the administration has enforced the law to date is because that’s the president’s obligation under the Constitution, which says he “shall take Care that the Laws be faithfully executed.” Failing to enforce a duly enacted law could be seen to violate this constitutionally imposed duty and set a terrible example for future presidents to pick and choose which laws they’ll enforce…
…[R]umors about how the Supreme Court will rule on a case tend to be unreliable. And given the chaos that would accompany the scenario sketched out above, one has to hope that the justices realize and understand the consequences of anything but a clear ruling on DOMA’s constitutionality. That might be reason enough for Kennedy to eschew procedural tricks and decide this case on the merits…