Supreme Court Possibilities

On January 16, 2015, the Supreme Court announced that it would hear the appeal of four cases regarding marriage equality from the Sixth Circuit. In November, the Sixth Circuit became the first appellate court to uphold same-sex marriage bans, thereby creating a split within the appellate courts and making it more likely for the court to ultimately agree to hear an appeal on the issue of marriage equality.

The questions presented to the high court by the Sixth Circuit cases are as follows: (1) “Does the Fourteenth Amendment require a state to license a marriage between two people of the same-sex?” and 2) “Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same-sex when their marriage was lawfully licensed and performed out-of-state?” Thus, essentially the court will answer the questions of whether same-sex marriage bans are unconstitutional and separately, whether a state that bans same-sex marriages can lawfully refuse to recognize such a marriage from another state.

The court will hold oral arguments on these cases in late April. Oral arguments will last 90 minutes for the first question noted above and 60 minutes for the second. The court is expected to issue a decision in late June.

We have received many questions from people inquiring about the consequences of the Supreme Court’s possible rulings.  There is no way to predict how the Court will rule but I have set forth the consequences of some potential rulings below.

1. The Supreme Court rules the Fourteenth Amendment requires states to issue marriage licenses to same-sex couples.

If the Court issues this ruling, then we will essentially have marriage equality.  Undoubtedly, there will still be some states that resist but it will likely be a futile effort on their part. Additionally, it will be yet another layer of case law ruling that denying rights to LGBT citizens is unconstitutional. Such a ruling may not have a direct impact on discrimination faced in other areas of law and life.  However, depending on how the Court tailors its ruling, it is certainly helpful authority moving forward as we battle discrimination in employment and public accommodations.

2. The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples, i.e., same-sex marriage bans are constitutional.

The consequences to this ruling are a little more complex.  In those states where marriage equality came through a vote of the people or a court ruling based on a state’s constitution, i.e. New Jersey and New Mexico, the Court’s ruling in this regard would have no impact and marriage equality would remain.

With regard to those states where marriage equality came through a federal or state court ruling based on the federal constitution (via the Windsor decision), those states would continue to have marriage equality until someone with standing moves to re-open the previous lawsuit and asks the court for a ruling based on the Supreme Court’s decision. It is possible that no-one in some of those states will take such action and therefore, marriage equality will remain. As many recall, in California, following the Supreme Court’s decision that the parties appealing the lower court ruling striking down Proposition 8 did not have standing, no-one with standing, such as a state official, chose to continue the appeals and marriage equality continues in California.

In Colorado, the most obvious person with standing to reopen the previous litigation is the state Attorney General. In November 2014, Colorado elected Republican Cynthia Coffman. Previously, Ms. Coffman’s public statements indicated that as Attorney General, she is required to enforce the law of Colorado and therefore, would enforce the marriage ban. Whether that will remain her stance should these circumstances come to pass remains to be seen.  If this occurs, the earliest the question of marriage equality can be on the state ballot is November 2016.

Marriages that occurred in the affected states in between the lower federal court rulings and any action to reopen and reverse the previous decisions would in all likelihood remain valid.

3.  The Supreme Court rules that the Fourteenth Amendment does not require states to issue marriage licenses to same-sex couples but also rules that states are required to recognize same-sex marriages lawfully entered into in other states.

If the Supreme Court issues this ‘split’ decision, then everything set forth in section two above will apply. Additionally, however, each state will be required to recognize same-sex marriages performed in other states where same-sex marriages are permitted.  Further, the non-permitting states will have to recognize said unions as actual marriages and not some other legal relationship, such as a civil union.  Thus, Colorado same-sex couples could travel to New Mexico, Idaho, New York, etc. and get married and upon their return, this state would have to recognize their union as a marriage.

Lawsuit Filed Challenging CO’s Same-Sex Marriage Ban

coloradoStateSeal-300x300A couple in Adams County recently filed a lawsuit in Adams County District Court challenging Colorado’s Amendment 43 of Colorado’s state constitution, which defines marriage as only between a man and a woman and effectively bans same-sex marriage.  In their lawsuit, they contend that Amendment 43 violates the equal protection and due process rights of same-sex residents of Colorado.

Amendment 43 was passed by a vote of the people in November 2006. As a result, there are essentially two avenues to remove the state law ban against same-sex marriage: litigation or the ballot box. Challenging the ban is crucial for Colorado’s same-sex couples; however, many members of the LGBT community and their allies were hoping to challenge the ban through the ballot box rather than litigation for a number of reasons. In all likelihood, this lawsuit will be removed to federal district court (the federal court enjoys jurisdiction should the State of Colorado choose to remove the case to that venue because the challenge to Amendment 43 is partially brought under and based upon federal law). Should this occur, then even if the couple is successful in federal district court, any appeal will be heard by the Tenth Circuit Court of Appeals. The states that make up the Tenth Circuit are not only Colorado but also Oklahoma, New Mexico, Kansas, Utah and Wyoming. Presently, the Tenth Circuit is considered an extremely conservative bench, a view supported by the rulings that Circuit has issued in recent years.  Many believe that a loss at the Circuit court level would be not only devastating to the LGBT community and its allies in their attempt to repeal Amendment 43, it also would not be a beneficial posture in which to appeal the decision to the U.S. Supreme Court.  Litigation of this type can take many years, as we witnessed with the Proposition 8 case out of California. As such, we anticipate the fight for marriage equality in Colorado will continue on both fronts – litigation and the ballot box.

Since early September, One Colorado has been hosting a Pathway to Marriage Tour throughout the State of Colorado.  In doing so, they are engaging community members in discussions regarding their thoughts and ideas on the best way to approach Amendment 43 and winning marriage equality for our state.  The following dates are remaining on their tour – November 6th: Colorado Springs, November 7th: Denver, November 13th: Lakewood, November 14th: Longmont, November 20th: Highlands Ranch, November 21st: Boulder.  To learn more about the Tour and/or to sign up for a meeting in your community, go here.

The Supreme Court Dismisses California’s Prop. 8

images-1On June 26, 2013, the U.S. Supreme Court issued their much anticipated decisions regarding the constitutionality of DOMA and Prop. 8. The Windsor decision, regarding DOMA, is addressed in the previous blog post. The Hollingsworth decision, regarding Prop. 8, is addressed below.

Hollingsworth v. Perry, Prop. 8

After the two couples challenging the constitutionality of Prop. 8 won in District Court, the State of California declined to appeal the ruling.  The proponents of Prop. 8 responsible for getting it on the ballot through the initiative process stepped in to appeal. When the Supreme Court granted certiorari, it specifically asked the parties to address whether the proponents of Prop. 8 had standing to bring the appeal.  In general terms, standing requires the party to have a specific legal or tangible harm that the court can remedy.

In a 5-4 decision written by Chief Justice Roberts, the Supreme Court dismissed the case based on its finding that the proponents of Prop. 8 did not have proper legal standing to appeal the lower court ruling. Proponents had argued that their participation in California’s initiative process in getting Prop. 8 on the ballot gave them a unique interest.  However, the Court disagreed, explaining that once Prop. 8 was approved, those who were involved in getting it on the ballot did not have any specialized interest in the law that was distinguishable beyond that of any other California citizen. “No matter how deeply committed petitioners may be to upholding Proposition 8 or how zealous their advocacy, that is not a ‘particularized interest’ sufficient to create [a basis for legal standing] … We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to do so. We decline to do so for the first time here.”

Based on this ruling, the Ninth Circuit opinion is vacated and the district court ruling remains in place. The practical effect of this decision is that Prop. 8 is history, mostly.  The truth is that technically, a district court can only make rulings that apply to the parties before it, rather than statewide.  Thus, the district court ruling could only apply to the two couples who challenged Prop 8 in court.  However, following the Supreme Court’s ruling, California Governor Jerry Brown directed state officials to begin issuing same-sex marriage licenses as soon as the Ninth Circuit lifts the previous stay on those marriages. Though it’s impossible to say for sure how long it will take, same-sex marriages will likely begin again in California in approximately thirty days from the date of the Supreme Court’s ruling.

Read the opinion in its entirety here.

Supreme Court Prop 8 Oral Arguments – Extensive Analysis

The dust has settled on the Prop 8 oral arguments and many have written and rewritten their predictions.  Using oral arguments to predict a ruling from the United States Supreme Court is questionable, at best.  Among other things, Justices tend to play devil’s advocate during oral arguments and therefore, the questions they pose do not necessarily reflect their own conclusions.  However, it is a game everyone, in and out of the legal field, tends to play. The game is made even more difficult to navigate here where there are so many possible rulings.

I. Standing

The initial question in the Prop 8 case is standing.  Generally, in order to have ‘standing’ to bring an action, a party must have a specific legal injury.  Following the initial trial, where the District Court ruled that Prop. 8 was unconstitutional as a violation of the equal protection and due process rights of gay and lesbian Californians, the State of California declined to appeal the ruling.  Afterward, a portion of the individuals who were responsible for getting Prop 8 on the ballot through the initiative process stepped in to appeal. The Ninth Circuit certified a question to the Supreme Court of California asking if the parties had standing to do so and the California Supreme Court answered in the affirmative.  The Ninth Circuit then ruled that Prop 8 was unconstitutional as a violation of due process rights.

The proponents of Prop 8 maintain that because the State of California has standing to defend the law, it also has the authority to delegate defending it to a third-party.  They also argue, in accordance with the California Supreme Court ruling, that failing to recognize standing of the people who placed the initiative on the ballot would thwart the entire initiative process. Justice Alito seemed to go along with this argument, noting the whole point of an initiative process was to allow people to circumvent public officials of whom they were suspicious.  If the only people who could defend laws passed by initiative were public officials, then the whole purpose would be defeated.  Justice Sotomayor voiced a similar concern.

Justices Ginsburg and Kagan were skeptical of the proponents’ standing. Ginsburg noted she understood their roles in getting an issue on the ballot, but questioned whether once the law passed, they held any more interest than any other member of the citizenry.  Kagan asked whether the State of California could just delegate the authority to anyone to defend a law. When proponents’ counsel answered in the affirmative, Chief Justice Roberts interrupted, stating that such a scenario would make the standing requirement basically meaningless.

Justice Sotomayor noted the distinction between a State official, who inherently has a fiduciary duty to the State, defending a law and a general member of the citizenry who does not owe such a duty. Justice Scalia seemed to dismiss this concern, stating that the Attorney General does not have a ‘proprietary’ interest in a particular law but can generally defend it because the law provides him that authority. Presumably, Scalia was implying that proponents could do the same if the Court recognized California’s right to delegate such authority, but that implication is mere speculation and I would never deign to presume too much where Justice Scalia is concerned.

Chief Justice Roberts questioned the Court’s approach in assuming the State of California or the current Prop 8 proponents were the only two options for parties with standing. He specifically noted there may be people in California who are actually injured by the striking down of Prop 8 who could properly challenge it, perhaps people who perform marriages but who do not want to perform them for same-sex couples.

Justice Breyer’s inquiries were split.  He described a strong argument in the briefing that proponents did not have any special interest beyond the rest of the citizenry and that they’re really nothing more than a few citizens who feel ‘really strongly’ the law should be enforced. He also noted that allowing the proponents to defend the law would introduce a ‘public action’ into the federal system, and there is nothing in the federal law providing for that.  However, he questioned why, if the Court were inclined to find the State of California could delegate the authority to defend its laws, it couldn’t delegate said authority to the proponents.  Justice Kennedy indicated that going through the initiative process to get an issue on the ballot may be sufficient to set proponents apart from the general citizenry and allow them standing.  On a similar note, Scalia questioned the effectiveness of State officials, who did not want to defend a law, choosing those who would defend it.

II.  Merits

The proponents’ primary arguments in favor of Prop 8 are two-fold. First, marriage is a gendered institution and the primary purpose of marriage is procreation.  Second, same-sex marriage is too new to know the societal harms it may inflict. Their use of these two propositions is illustrated below.

Justice Kennedy asked proponents’ counsel whether the question could be treated as one of gender classification, indicating it was a question with which he had wrestled.  Justice Sotomayor asked proponents’ counsel whether the government was ever justified in denying gays and lesbians other benefits, such as employment, or imposing burdens on them. When proponents’ counsel basically answered no, she asked why then shouldn’t they be treated as a class so that government had to meet certain standards in order to discriminate against them, and what made marriage different.

Proponents’ counsel answered that gays and lesbians do not meet the traditional tests for being treated as a class.  He also argued that the question of whether the government can discriminate against them in other contexts, such as employment, is distinguishable from the Prop 8 case because in that situation, the government would be discriminating between similarly situated individuals as employees and probably based upon arbitrary and capricious reasons.  In the context of marriage, however, gay couples and heterosexual couples are not similarly situated because heterosexual couples can procreate, while gay couples cannot.  Proponents contend the State has an interest in regulating marriage and the purpose of marriage is procreation.

Justice Kagan then noted that might be a reason to not include them in marriage, but questioned a reason to exclude them.  She explained that perhaps same-sex couple’s do not serve the State’s interest in procreation but asked if they somehow harm a State’s interest?  This brought proponents’ counsel to his second primary argument, same-sex marriage is too new to know what societal effects may result and they propose that such effects could be adverse.  When he failed to come up with a specific harm, but refused to concede there wasn’t one, Justice Scalia offered him an allegedly concrete harm, stating that there was “considerable disagreement among sociologists about whether” it was harmful to raise children in same-sex households.  (Because this is so egregious, I will make an exception to my usual restraint from adding personal commentary to note, Justice Scalia’s statement is an absolute falsehood.  Every national, professional psychological and medical association has expressly found, including the American Academy of Pediatrics as early as 2002, that there is no link between parents’ sexual orientation and a child’s emotional well-being).

On this note, Justice Ginsburg stated that the idea of societal harm resulting from same-sex couples raising children was irrelevant to proponents’ argument because California allows adoption by same-sex couples.  Scalia countered that the opponents of Prop 8 were seeking a nation-wide ruling as well.

Justices Kagan and Breyer asked proponents’ counsel to explain why it did not violate the Constitution to prohibit gay people from getting married but it would be a violation to prevent infertile couples or people over the age of 55 from getting married.  On the latter, Proponents’ counsel stated that it was rare for a male to outlive his fertility and that the societal norm of marriage imposes fidelity and monogamy upon a couple and therefore, would prevent irresponsible procreation by the male party in that marriage.  As to the former, proponents’ counsel stated that allowing marriage to be a genderless institution shifts the focus away from procreation.

Chief Justice Roberts noted that through civil unions California gays and lesbians have every other state right heterosexual couples have so why should the State be required to change the definition as it’s just a label.  Counsel for the opponents of Prop 8 countered that certain labels matter, such as “citizen.” He also argued that in cases such as Lawrence and Skinner, among others, the Court had held that marriage was a fundamental right based on privacy, intimacy, status and recognition, not just procreation, and all those things apply to same-sex couples.

Justice Scalia made it abundantly clear that he would not rule in favor of recognizing a constitutional right to marriage for same-sex couples, not that this was a surprise.

Kennedy, who most see as the possible swing vote, stated that he thought the Ninth Circuit’s ruling was based on an odd rationale.  In all likelihood, opponents of Prop 8 found this statement more discouraging than any other because the 9th Circuit’s decision was based almost entirely on the rationale of Justice Kennedy’s opinion in Romer v. Evans, wherein the Court struck down a Constitutional amendment in Colorado that prohibited anti-discrimination protection of gay citizens in both the public and private sphere.  In the Prop 8 arguments, though, Kennedy stated that applying that rationale would mean penalizing a State that had been generous in the rights it granted to gay couples.

Sotomayor brought up the slippery slope argument, asking whether it would be permissible then for a State to prohibit polygamy or set a minimum age at which one could get married.  Prop 8 opponents responded that those regulations would pertain to conduct, while prohibiting same-sex marriage denies rights to people based on status, which is not constitutional.

Kennedy stated that he thought the opponents of Prop 8 were asking the court to enter into uncharted water with very little sociological evidence. Though he did not note that there was an immediate injury to the approximately 40,000 children in California who were being raised by same-sex couples and who wanted their parents to have full legal status.  But he returned again to the ‘newness’ of gay marriage and questioned whether they should have granted certiorari in the case, especially given the standing issue and also noting that interracial marriage had been present for 100 years in common law countries before they decided Loving v. Virginia.  Justice Alito stated that gay marriage was newer than cell phones and the internet.  Justice Sotomayor joined this thinking, asking if there was any reason they had to decide this issue now when they let segregation percolate for over 50 years before they decided Brown v. Board of Education.

The Solicitor General also argued on behalf of President Obama’s administration that Prop 8 was a violation of equal protection because California gave all of the rights of marriage to same-sex couples, but denied them actual marriage.  This would mean that the nine states that do not allow same-sex marriage but allow gay and lesbian couples all of the other benefits of marriage must open marriage to them as a matter of equality.  The Justices sharply criticized this argument.

III.  Possible Rulings

a.  Dismissing as Improvidently Granted.  There has been some discussion regarding whether the Court could dismiss the case as improvidently granted, saying, in effect that the Court should not have accepted the case.  In that situation, the case is simply treated as if the Court had never granted certiorari and the appellate court decision stands. While not common, the Court did issue such a ruling just last year in First American Financial Corp. v. Edwards, No. 10-708, a case based entirely on standing, wherein the Court heard oral arguments in November 2011 but did not dismiss it as improvidently granted until the last week of June 2012.

b.  No standing.  If a majority of Justices were to find that the proponents of Prop 8 did not have standing, then the ruling of the Ninth Circuit would be vacated and, in all likelihood, the district court ruling would be considered reinstated, meaning Prop 8 would be stricken as unconstitutional.  Though, a party with possible standing could challenge that ruling in the future.

c.  Standing, nation-wide ruling.  If the Court ruled Prop 8 proponents do have standing, the Court could issue a nation-wide ruling that same-sex marriage is a fundamental constitutional right and must be available to all United States citizens.  This ruling seems unlikely.

d.  Standing, CA only.  If the Court ruled Prop 8 proponents have standing, the Court could follow the Ninth Circuit’s ruling, which is limited to California, based on the Romer rationale discussed above.

e.  Standing, 9-State rule.  If the Court ruled Prop 8 proponents have standing, the Court could rule that once a state has provided by law that same-sex couples will have the same rights as heterosexual couples, as California did (as well as 8 other states), there is no legitimate justification for denying those couples the status of “marriage” itself.   Based on this reasoning, such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids. This ruling also seems unlikely.

f.  Standing, Uphold Prop 8.  The Court could rule to reverse the 9th Circuit decision and uphold Prop 8 as a reasonable exercise of a State’s power to regulate marriage and protect it as a focus of procreation.  Such a ruling would not mean that same-sex marriage was prohibited anywhere else in the nation, but it would mean that bans on such marriages were constitutional.

g.  No majority ruling.  If the Court issues a ruling, but does not have a 5 vote majority on any one ruling, then the 9th Circuit’s California only decision would become final.  That court would remove the temporary order blocking marriages and same-sex couples could resume getting married in the state.

As a disclaimer, my own prediction may admittedly be swayed by my personal preference because these arguments did not fill me with confidence with regard to any ruling on the merits.  Without even addressing standing at this point, I feel confident this Court is not going to issue a ruling that proclaims the fundamental right of marriage extends to same-sex couples. I think certain conservative Justices want to rule on the merits of this case because they want to uphold Prop 8.  However, I don’t think either side is going to reach a majority without Justice Kennedy.  Justice Kennedy has always been a strident defender of the preservation of state’s rights.  It is upon this basis I believe he will rule in favor of striking down Section 3 of DOMA, but that creates an interesting conflict for this case.  Still, I find it difficult to conclude Justice Kennedy wants to uphold Prop 8 but he seemed relatively clear he would not strike it based upon the reasoning of the Ninth Circuit, and that leaves him with few options as he seemed even more unlikely to rule in favor of a nation-wide ruling (and there would not be a majority for that ruling, regardless).  I think the Court will either find that the proponents of Prop 8 do not have standing and therefore never reach the merits, or they will do exactly what they did last year in the First American case and dismiss as improvidently granted.  In either situation, Prop 8 would be considered unconstitutional for the time being.

– Jenny Evans