WASHINGTON — The Supreme Court is expected to decide two cases in the coming two weeks that could have an extraordinary effect on LGBT rights, on the lives of same-sex couples across the 50 states, and on the country itself.
The possible outcomes, though, are as complex as the path that got the cases — Hollingsworth v. Perry and United States v. Windsor — to the Supreme Court.
When Chad Griffin began working to bring a federal lawsuit challenging California’s Proposition 8 marriage amendment in 2008, he found himself working against the LGBT political and legal establishment.
None of the LGBT legal organizations thought the Supreme Court — or even the broader country — was ready for the type of lawsuit Griffin wanted to bring: a frontal challenge arguing that bans on same-sex couples’ right to marry violate the United States Constitution’s guarantees of equal protection and due process.
The legal groups, from New England’s Gay & Lesbian Advocates & Defenders and the California-based National Center for Lesbian Rights to Lambda Legal and the ACLU’s LGBT Rights Project — were readying a different path, a focus on challenging the federal definition of marriage in the Defense of Marriage Act that banned the federal government from recognizing marriages between same-sex couples that already were legal in states like Massachusetts, Connecticut, and, in April 2009, Iowa.
After California voters ended same-sex couples’ marriage rights by approving the Proposition 8 amendment in November 2008 after a state Supreme Court ruling earlier in the year had started the marriages, Griffin courted the odd-couple legal team of Ted Olson and David Boies, got financial backing from Hollywood heavyweights like Rob Reiner and Bruce Cohen, and pressed ahead with his lawsuit.
On May 22, 2009, Griffin’s newly established organization — the American Foundation for Equal Rights — and their two sets of plaintiffs, Kris Perry and Sandy Stier and Paul Katami and Jeff Zarrillo, filed their lawsuit. Word of the lawsuit’s filing was kept quiet until after the California Supreme Court’s ruling a few days later, on May 26, that the passage of Proposition 8 as an amendment was permitted under California’s constitution.
More than two months earlier, on March 3, 2009, GLAD, with lawyer Mary Bonauto heading the case, had gotten the ball rolling on the established legal groups’ preferred path, filing a challenge to Section 3 of DOMA on behalf of several couples or previously married people in federal court in Massachusetts. Later, a similar lawsuit was filed by Massachusetts Attorney General Martha Coakley, arguing that Massachusetts itself had a claim that DOMA violated its rights as a state. Following that, Lambda and the ACLU filed lawsuits on behalf of federal court employee Karen Golinski and widow Edith Windsor, respectively.
What happened next was perhaps the most surprising development: Everyone won. Every individual and every couple in these cases, challenging Section 3 of DOMA or California’s Proposition 8, won. Beginning with Judge Joseph Tauro’s decision on July 8, 2010 — ruling that DOMA violated several constitutional protections, from the couples’ arguments about equal protection and due process to the Massachusetts’ arguments about state sovereignty and the Spending Clause — judges began consistently saying that DOMA’s federal definition of marriage was unconstitutional. Then, on Aug. 4, 2010, Judge Vaughn Walker issued his ruling that Proposition 8 also was unconstitutional.
During the course of these lawsuits’ progression, the Obama administration’s Department of Justice switched sides in the DOMA lawsuits, with Attorney General Eric Holder announcing on Feb. 23, 2011, that he and President Obama had themselves decided that courts should use heightened scrutiny to examine laws based on sexual orientation and that, under that heightened scrutiny, DOMA’s Section 3 is unconstitutional. House Republican leaders, in turn, took up the defense of DOMA.
On appeal, and with the government now on the plaintiffs’ side in the DOMA cases, the laws fared no better. The 9th Circuit Court of Appeals in California struck down Proposition 8, although on more narrow grounds than those decided by Walker. The 1st Circuit in Boston and 2nd Circuit in New York followed, both agreeing that DOMA’s Section 3 was unconstitutional. The 2nd Circuit went further, also deciding, in agreement with the administration, that laws targeting gay and lesbian people for differential treatment should be subjected to heightened scrutiny.
Then, on Dec. 7, 2012, the Supreme Court announced that it would be hearing appeals in one of the DOMA cases, the one brought by Windsor, and in the Proposition 8 case. In both cases, the justices alerted the lawyers to concerns they had about whether the defendants in either case had the right to bring an appeal and, in the DOMA case, whether the government’s decision to stop defending the law meant the court no longer had the ability to consider the case. The issues, of standing and jurisdiction, were to be included in the parties’ briefing to the court.
In late March, the justices heard arguments in the two cases, with the justices appearing, overall, to be split on the issues. Although the justices appeared eager to avoid a broad ruling on whether it is unconstitutional nationwide for any state to ban same-sex couples from marrying, the justices seemed just as skeptical of the federal government’s decision, with DOMA, to deny recognition of same-sex couples’ marriages once a state made the decision to allow the couples to marry.
Now the couples and the widow await the justice’s decision, which are due to come in the next two weeks. The implications for the court’s decisions, of course, will affect many more than those people before the court, though, and the outcomes could shape the LGBT rights movement — and the national political discussion about LGBT rights — for decades to come.
And Chad Griffin, the once-outsider living in California, is awaiting the decisions from Washington, D.C., in his role as president of the Human Rights Campaign, the nation’s largest LGBT rights group.
Aside from the standing and jurisdiction questions, a primary issue — which the justices appeared unlikely at oral argument to be ready to reach at this point — is the one urged by the administration, whether sexual orientation, like race or sex or national origin, should be subjected to heightened scrutiny. If the justices decided to apply heightened scrutiny, most likely the intermediate scrutiny given to sex-based classifications, DOMA, Proposition 8, and all state’s marriage bans would likely — though not absolutely — be held unconstitutional.
If the justices keep a lower form of scrutiny, either rational basis or what is called “rational basis with teeth,” the cases would be decided on a more fact-intensive inquiry, which could lead to more limited rulings.
What could those rulings be?
On DOMA, the court could:
Strike down Section 3 of DOMA: Marriage laws would stay the same across the country, but the federal government would no longer be barred from recognizing marriages between same-sex couples for purposes of federal laws or rules.
Striking down Section 3 of DOMA, however, will not end the questions for the federal government. The many different federal laws and regulations relating to marriage have different standards for how the determination is made whether a given couple is married, with some programs basing the decision solely on whether the marriage is recognized by the state in which the couple lives and others being based on whether the marriage was valid where it was entered into. There will also be questions, already raised in the immigration context, about whether the federal government should treat civil unions or domestic partnerships like marriages for application of these federal marriage-based laws or regulations.
Additionally, there are laws other than DOMA that distinguish between same-sex and opposite-sex married couples — including laws impacting veterans that already face pending lawsuits from OutServe-SLDN and the Southern Poverty Law Center.
Dismiss the DOMA case on standing grounds or because of lack of jurisdiction: Windsor’s trial-court victory likely would stand, but the decision would not apply across the federal government or country.
Depending on the reasoning of a decision on these grounds, one of the other cases challenging DOMA might be able to be heard by the court in the fall — but that would be unlikely. This scenario presents an unusual possibility that could take until an appellate court rules against a plaintiff challenging DOMA until the court could hear an appeal.
Uphold Section 3 of DOMA as constitutional: This would mean advocates’ only current hope for federal recognition of same-sex couples’ marriages would be through congressional repeal of DOMA, an uphill battle in the current Congress.
On Proposition 8, the court could:
Strike down California’s Proposition 8 as a violation of equal protection or due process, based on the different treatment of same-sex couples and opposite-sex couples: Most likely, this ruling would result in bans on same-sex couples’ marriages being struck down across the country. This is the most broad possible outcome, and likely would be paired with a ruling striking down Section 3 of DOMA.
Strike down California’s Proposition 8 as a violation of equal protection or due process, based on the reasoning that same-sex couples being given the same benefits of marriage without the name itself is unconstitutional: This ruling, advocated for by the federal government in a filing with the court earlier this year, likely would result in same-sex couples being allowed to marry in California and other states with civil unions or comprehensive domestic partnership laws.
Strike down California’s Proposition 8 as a violation of equal protection, based on the reasoning that it is unconstitutional to take away a right previously granted to the state’s citizens, in this case, the right of same-sex couples to marry: This would essentially be the ruling of the 9th Circuit in the case, a narrow ruling striking down Proposition 8 that would apply across the country but have no immediate impact on any other states because no other state has allowed same-sex couples to marry statewide and then taken away that right.
Dismiss the case on standing grounds: This most likely would revert the case back to the trial-court opinion and judgment, which bars state officials from enforcing Proposition 8. Because the case was not brought as a class-action lawsuit, but instead only on behalf of two couples, there could be an effort — from a county clerk not wanting to marry same-sex couples or someone else — to challenge whether the ruling applies across the state.
Dismiss the case as improvidently granted: This would let the 9th Circuit’s narrow ruling stand, but would not apply the ruling to the whole country. Proposition 8 would be unconstitutional, same-sex couples could marry in California, and the ruling would apply to the other western states within the 9th Circuit.
Uphold Proposition 8 as constitutional: The law would continue to be enforced, and opponents of Proposition 8 most likely would seek to go to the ballot in short order to overturn the law.
Remand the case to the 9th Circuit to have it decided in light of the opinion in the DOMA case: This would put a final decision on hold, and is not a likely scenario, but it is possible, particularly if the court decides that heightened scrutiny applies to sexual orientation classifications. Even then, though, it would make sense at that point for the court to resolve the Proposition 8 case as well — unless it uses the remand to buy time for a final decision about the constitutionality of marriage bans.