It is never wise to predict U.S. Supreme Court decisions on oral arguments, or else Obamacare would have been repealed. Based on the Justices' line of questioning, however, it appears that they will overrule Proposition 8 -- but on narrow grounds that will only affect California. The Justices spent a significant chunk of time on "standing," but they will likely consider the Prop 8 supporters as proper litigants. But Justices Anthony Kennedy and John Roberts had clear problems with finding a "right" to same-sex marriage that would apply nationwide -- and the "nine-state" compromise was widely panned. I predict they will rule Prop 8 unconstitutional by applying the Romer precedent and sustaining the Ninth Circuit decision, i.e., Prop 8 was unique because it "took away" a right that same-sex couples already had.
Today, the Court will hear oral arguments on the federal Defense of Marriage Act -- a case whose outcome should be more favorable. A state can grant marriage to same-sex couples, but we still don't have equality because DOMA denies them all federal benefits. I also expect that the standing question in DOMA to be clearer.
As I reported yesterday, there are five ways the Supreme Court could rule on Prop 8: (1) deny standing to Prop 8 supporters and make us win by default, (2) uphold Prop 8 and deny marriage to California couples, (3) sustain the Ninth Circuit decision that overruled Prop 8, but only in California, (4) overrule Prop 8 in a way that extends same-sex marriage to nine states or (5) extend marriage equality to all 50 states.
Standing Dominates Oral Arguments, But Court Likely to Rule on Merits
Unlike today's DOMA arguments, the Supreme Court did not set aside time for the Prop 8 litigants to discuss "standing" -- but Chief Justice John Roberts made all three lawyers yesterday explain their position at the outset. This led to a robust back-and-forth, and many commentators now predict the Court will "punt" on Prop 8 -- allowing same-sex marriage in California because the appeal was improper.
Here's why I don't believe that will happen. The conservatives will vote to grant standing, as Samuel Alito argued that the whole point of an initiative process is to allow citizens to bypass elected officials. But "swing" vote Anthony Kennedy also expressed concern that dismissing a case because the governor and attorney general refused to defend Prop 8 would result in a "one-way ratchet." Even liberal Sonia Sotomayor added that Ted Olson was not answering the "fundamental fear" of such a precedent. The Justices asked about standing, but the votes are there to grant it.
Justices Not Likely to Determine Same-Sex Marriage a 'Fundamental Right'
It was clear from the oral arguments that the four liberal Justices -- Sonia Sotomayor, Elana Kagan, Stephen Breyer and Ruth Bader Ginsburg -- believe that Prop 8 is unconstitutional, and probably that same-sex marriage is a fundamental right. But while Anthony Kennedy -- and even John Roberts -- made some favorable comments, both were uncomfortable with the idea of expanding gay marriage to all 50 states.
The Obama Administration argued that Prop 8 is unconstitutional, wherever states grant civil unions or domestic partnerships to same-sex couples -- but denied the right to marry. Dubbed the "nine-state solution," this ruling would have extended marriage equality to nine states including California -- which sounded like a good political compromise. But Justices from both sides of the spectrum blasted it for being legally and logistically inconsistent. As the Huffington Post wrote, it probably just confused them.
Will Kennedy (and Roberts?) Vote to Uphold the Ninth Circuit Decision?
This leaves us with two possible outcomes: upholding Prop 8 (thereby putting the Court on the wrong side of history), or repealing Prop 8 in a narrow enough way that it only affects California. Justices Kagan, Ginsburg and Sotomayor all asked questions that zeroed in on that option -- perhaps as a means of getting a fifth vote.
Last year, the Ninth Circuit overruled Prop 8 because it actually repealed a right to same-sex marriage that the state had granted. This makes Prop 8 unique among all other anti-gay marriage amendments because, applying the Romer precedent, it was malicious.
At one point, Justice Kennedy was uncomfortable with making same-sex marriage a fundamental right -- calling it a "broad argument" that was far more extensive than the Ninth Circuit's ruling. But he then went on to call the Ninth Circuit's ruling on Prop 8 a "very odd rationale" -- which is disturbing. However, it's clear from reading the transcript (relevant passage is on page 42) that Kennedy was confusing what the Ninth Circuit had said on Prop 8.
Kennedy wrote the Romer decision in 1996, which overruled a Colorado state initiative that repealed non-discrimination ordinances. The Ninth Circuit decision on Prop 8 heavily relied on Kennedy's reasoning in Romer. As a friend of mine said yesterday, "Hopefully, his clerks will clear up the confusion."
Would Roberts be a sixth vote to repeal Prop 8 on these narrow grounds? At some points in the oral arguments, Roberts seemed amenable to the idea that Prop 8 not only denied same-sex marriage in California -- it did so after the state Court found it was a right. While less likely to do so than Kennedy, Roberts may do the right thing.
DOMA More Likely to Be Repealed, Paving Way for Full Marriage Equality
As I wrote when the California Supreme Court first granted same-sex marriage in 2008, we will never get real marriage equality until we repeal the Defense of Marriage Act.
Even in states where gay couples can get married, DOMA denies them any and all federal benefits -- such as joint tax returns, Social Security benefits, immigration or military benefits. Don't Ask Don't Tell may be gone, but gays in the military don't get benefits for their spouse or partner. If your husband is an immigrant, they can still get deported -- even if you live in a state like Connecticut with same-sex marriage.
And in the case of Edith Windsor, who married her wife in Canada and then moved to New York, she was hit with $363,000 in federal estate taxes after her wife died. If they had been a straight married couple, she would have been exempt from that.
Unlike the Prop 8 lawsuit, which was filed over serious objections by civil rights lawyers, the federal case against DOMA has been painstakingly planned for years. The plaintiffs are legally married (no one disputes that), but the federal government is violating equal protection. The strategy was to file several DOMA lawsuits across the country in various circuits, so by the time the Supreme Court hears it today we will have had multiple cases with a consistent string of victories.
DOMA, which President Clinton signed in 1996, does two things: (a) it denies all federal benefits to same-sex couples, regardless of their marital status and (b) it allows states to block recognition of gay marriages performed in other states. Today's lawsuit only challenges the former, but a Supreme Court victory would bring tangible benefits to thousands of married gay couples in America - not to mention the economic impact on states that have granted marriage equality.
Just like Prop 8, the federal government has refused to defend DOMA -- forcing House Republicans to intervene as third parties. The Supreme Court will rule on whether they have standing, and it's clear that our odds are better than in Prop 8.
Because Prop 8 was a citizen initiative, it can be argued that -- in the absence of the state government defending it -- those who collected signatures to place it on the ballot may "substitute" in to represent the state's "interest." But DOMA was an Act of Congress, signed into law by the President. Both Bob Barr (who wrote DOMA as a Congressman) and Bill Clinton (who signed it into law) have disavowed DOMA, and argue that it should be repealed. An amicus brief has been filed by four U.S. Senators who voted for DOMA - and now argue that it was a mistake, and must be overruled.
Stay tuned for tomorrow, as I assess how the oral arguments on DOMA went.
Paul Hogarth has a J.D. from Golden Gate University Law School, and is licensed to practice law in California. He was a legal intern at Equality California in the summer of 2005, was active in Bloggers Against Prop 8, organized volunteers in 2009 who traveled to Maine for the marriage campaign, live-blogged the Prop 8 trial for the Courage Campaign in January 2010 and in 2012 worked as a Campaign Consultant for United for Marriage - a project that sent volunteers to Maine, Maryland, Minnesota & Washington to supplement campaign field efforts. Follow him on Twitter at @paulhogarth.