an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I note with interest that the certiorari petitions granted today both involve cases where plausible arguments can be made against justiciability on standing grounds. (Indeed, the Court specifically requested the parties to address these issues with respect to DOMA and Proposition 8.) I do not think that this means the Court will decline to reach the merits. But the escape pod is at the ready. Posted
by Gerard N. Magliocca [link]
Could somebody here do a rundown of how the standing issues work? What happens if the court decides that it doesn't have jurisdiction to hear the case because the Executive Branch agreed with the 2d Circuit's result, as opposed to deciding that the BLAG lacked Art. III standing? Would the latter decision, but not the former, overrule the 2d Circuit opinion (presumably, because the BLAG intervened before the 2d Circuit handed its decision down)? Also, what (if anything) happens to the 1st Circuit opinion if the Windsor court holds that the BLAG lacks standing? Could the court order that it, too, is an illegitimate advisory opinion? Could the 1st Circuit decide that sua sponte? Or would it only (or even) be attackable in subsequent litigation?
Olsen and Boies filed this suit to get a ruling on the right to gay marriage, which Judge Walker gave them after a trial at which the Prop 8 proponents were unable to produce any evidence other than prejudice/traditional values in support of their position.
In the Ninth Circuit, Judge Reinhardt managed the case to delay and minimize the likelihood of a grant of cert. He sent the standing issue to the California Supreme Court, and he narrowed the decision to be an application of the Roemer rule that a state may not amend its constitution to deny a minority the opportunity to seek legislative relief.
That cert was granted indicates to me that the conservatives intend to address the underlying gay marriage issue for the purpose of driving a stake through its heart. Along the way, it is going to distinguish if not destroy the one-way ratchet interpretation of the Roemer rule (which was also used by the 6th Circuit to prevent a Michigan anti-affirmative action in education amendment). Marriage will be declared a matter in the exclusive control of the states.
This will doom DOMA. The standing issue will go away because the Court itself appoints amicus to represent positions abandoned by the government.
The standing issue at the USSC seems fairly unimportant but what about elsewhere?
Will district and appellate courts also be able to make the issue of when legislative or other claims of standing (including when ballot measures that the state doesn't want to defend are up) are involved?
I am not as willing to say that the conservatives want to "drive a stake" thru the heart of the same sex marriage issue.
Marriage cannot be "declared the exclusive control of the states" without overruling many rulings in which marriage was declared a fundamental right & had to meet equal protection requirements.
Also, the feds can regulate marriage, such as providing tax breaks or whatnot. DOMA however is not constitutionally rational.
I can see a ruling that says marriage is to a large extent the domain of the states (though the Windsor case only made federalism a minor concern as compared to the 1CA ruling) and upholding Prop 8.
I'm wary of them taking that case, which was carefully narrow & left open even the Hawaii path of giving the legislature discretion not to allow SSM, but not cement it into stone via a state constitutional amendment.
OTOH, the narrow breadth of the law in CA (like Vermont recognizing civil unions) can lead to a narrow ruling, worse comes to worst, that given same sex couples have broad protections, the law is rational. Kennedy being a pro-gay rights justice not wanting to put forth a Scalia like "screw you"* to the same sex marriage movement.
[* with apologies, but serious business here and I think taking Prop 8 & upholding it would be a gratuitous move on their part]
I suspect that the future of same sex marriage, whether as a national issue or a state-by-state issue, will depend on what standard of review SCOTUS determines to apply to statutes that disadvantage a discrete group of persons based upon sexual orientation. Lawrence v. Texas was indistinct on that sub-issue. Romer v. Evans affirmed the result reached by the Colorado Supreme Court (which had applied strict scrutiny), but did so because the amendment at issue there failed even the rational basis test. (SCOTUS ruled there that a mere desire to harm a politically unpopular group did not qualify as a legitimate governmental interest.) Neither Lawrence nor Romer forecloses application of a heightened standard of scrutiny, but neither decision mandates heightened scrutiny.
Judge Walker in Perry conducted a trial without benefit of definitive guidance from the Supreme Court as to the standard of review. The District Court opinion found that strict scrutiny applies, but made factual findings indicating that Proposition 8 would fail even the rational basis test. The Court of Appeals in Perry declined to go that far, opining in essence that the case is controlled by Romer. The fully developed evidentiary record in Perry gives SCOTUS a smorgasbord of options to choose from.
The Court of Appeals in Windsor straightforwardly addressed the standard of review, finding that homosexuals constitute a quasi-suspect class and applying intermediate scrutiny. (The District Court had applied rational basis analysis and found DOMA wanting even under that deferential standard.) The dissenting judge in the Court of Appeals aptly predicted that application of that standard would be the death knell for state prohibitions of same sex marriage. 669 F.3d 169, 202 n.7.
I cannot predict what standard of review SCOTUS will apply, but I suspect that both lower courts' opinions in Perry will be vacated and the matter remanded to the District Court for further factual findings based upon a definitive statement in Windsor of what standard applies. (Upon remand, a different District Judge would hear the case, in that Judge Walker has retired and left the bench.)
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