United States v. Windsor: Another Victory for Gay Rights, 1013 RIBJ, 62 RI Bar J., No. 2, Pg. 13

AuthorJerry Elmer, Esq. Conservation Law Foundation

United States v. Windsor: Another Victory for Gay Rights

Vol. 62 No. 2 Pg. 13

Rhode Island Bar Journal

October 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0September/October 2013

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Jerry Elmer, Esq. Conservation Law Foundation

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0On June 26, 2013, the U. S. Supreme Court handed down two opinions pertaining to same-gender marriages. In Hollingsworth v. Perry, No. 12-144, the Court considered a challenge to the constitutionality of California’s Proposition 8, which had overturned a state Supreme Court ruling legalizing same-gender marriages. The Supreme Court found the challenge non-justiciable. In United States v. Windsor, No. 12-307, the Court struck down the federal Defense of Marriage Act (DOMA).

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0This article proceeds in three parts. Part I considers the Court’s inconsistent approach to issues of justiciability in the two cases. Part II considers the basis of the Court’s ruling on the merits in Windsor. Part III looks at Justice Scalia’s dissent and the possible implications for future gay rights litigation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Part I: Justiciability and Standing

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Court’s two opinions, taken together, are incoherent on the question of standing. This is precisely the type of incoherence that drives Critical Legal Studies (CLS) scholars wild. The CLS movement loves to argue that cases and precedents “are bereft of any set of determinate legal principles, giving judges a huge amount of discretion ‘to ignore constitutional provisions, statutes, precedents, evidence, and...legal arguments’ to come to whatever outcome they desire.”1

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Hollingsworth, the Supreme Court ruled that neither it nor the Ninth Circuit Court of Appeals had Article III jurisdiction, because there was no case or controversy.2 Respondents in the high court, plaintiffs in the District Court, were “two same-sex couples who wish to marry [and had] filed suit in federal court, challenging Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment….”3 Plaintiffs won in the District Court, 4 and the California elected officials who had been named as nominal defendants – the Governor and Attorney General – declined to appeal. The proponents of Article 8 sought to intervene to defend the constitutionality of their ballot initiative. The Ninth Circuit, sensing trouble, certified a question to the Supreme Court of California about the matter of standing. The certified question was specifically whether Proposition 8 proponents have standing to litigate the validity of Proposition 8 under the California Constitution or “otherwise under California law” a question on which the California Supreme Court has final say.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The California Supreme Court ruled unanimously that the Proposition 8 proponents do have standing under California law to prosecute precisely the appeal that they were prosecuting.5 That was good enough for the Ninth Circuit, as it should have been.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0But, it was not good enough for the U.S. Supreme Court. Taking a narrow, crabbed, view of standing, the majority held that the Proposition 8 proponents lacked standing. Thus, there was no case or controversy, and no Article III jurisdiction.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The short of it was that, in Hollingsworth, the gay-rights advocates who had filed the lawsuit could not appeal the favorable District Court ruling because they had won in the District Court. Thus, they were no longer aggrieved.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In Windsor, the Supreme Court came to the opposite conclusion on a substantially identical set of facts. In Windsor, exactly as in Hollings -worth, the Respondent in the High Court, the plaintiff in the District Court, was in a same-sex marriage. In Windsor, exactly as in Hollings -worth, the plaintiff was disadvantaged by a law that discriminated against lesbian and gay people. In Windsor, exactly as in Hollingsworth, the plaintiff filed suit in federal court challenging the offending law under the Due Process and Equal Protection clauses of the Fourteenth Amendment. In Windsor, exactly as in Hollings -worth, the plaintiff won in the District Court, 6 and the nominal defendant – the Federal Government – was pleased with and fully supported the outcome.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Nevertheless, in Windsor, the Supreme Court came to the opposite conclusion as it had in Hollingsworth. In Windsor, the Court found a live controversy and, therefore, jurisdiction.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0How did the Court rationalize away its result in Windsor? First, by arguing that there are “prudential” concerns (translation: there may not be jurisdiction, but we want to do this anyway): “Were this Court to hold that prudential rules require it to dismiss the case…extensive litigation would ensue. The district courts in 94 districts… would be without precedential guidance…. in cases involving the whole of DOMA’s sweep….”7

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Of course, exactly the same was true in Hollingsworth. The Court’s failure to rule in Hollingsworth means that the district courts in 94 districts are without pre cedential guidance in cases that seek to undo statewide voter bans on same-gender marriage (or other discriminatory statutes) based on the due process and equal protection clauses of the Fourteenth Amendment.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Second, the Supreme Court rationalized away its result in Windsor by saying that “the attorneys for BLAG [the Bipartisan Legal Advisory Group, a group of Congressmen that had intervened to support DOMA] present a substantial argument for the constitutionality of…DOMA. BLAG’s sharp adversarial presentation of the issues satisfied [our] concerns that otherwise might counsel against hearing an appeal from a decision with which the principal parties agree.”8

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Exactly the same was true in Hollingsworth. The proponents of Proposition 8 presented substantial arguments for the constitutionality of the measure; and they made a sharp adversarial presentation. And, into the bargain, the California Supreme Court had held that, under California state law, those proponents had standing to make that sharp adversarial presentation to the Court.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Two cases with virtually identical facts, asserting identical constitutional challenges to two laws that harm lesbian and gay people with opposite results from the same Court on the same day! No one need wonder why the Critical Legal Studies scholars argue that the law is incoherent.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Part II: The Basis of the Ruling in Windsor

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Windsor was primarily about equal protection and equal rights. Yet the Court’s opinion was not based on equal protection jurisprudence.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Broadly speaking, the Supreme Court’s equal-protection jurisprudence involves a basic bifurcation. Laws that do not implicate a suspect class (such as race) or a fundamental liberty interest (such as marriage) are reviewed very deferentially.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0They must only demonstrate a rational relationship to a legitimate government interest. Under such a deferential test, virtually any statute can be upheld.9 Cases that do implicate a suspect class or fundamental liberty interest are subject to heightened scrutiny. In fact, so-called heightened scrutiny is often just a euphemism for impermissible, as...

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