LGBTQ Legal Concerns Following the 2016 Election

images-1We have been receiving a lot of questions from our clients and community members wondering what the recent election of Trump means to their legal rights.  The answers are complex and not entirely known at this point.  However, here is some of the information we can give you at this point:


Trump has said that he would “strongly consider” appointing justices to overrule the decision on same-sex marriage.  Following that statement, Trump named Indiana Governor Mike Pence as his running mate.  Pence has a long history of taking anti-LGBT positions.  Both Trump and Pence have also repeatedly stated that they believe the right to marry should be a state’s rights issue, which is contrary to the Supreme Court’s ruling in Obergefell.  But it is important to understand that it would take a complex concurrence of events to challenge the Obergefell decision.

The President does not have the authority to overturn a Supreme Court decision, but he does have the ability to appoint Supreme Court Justices that would have that power.  Right now there is one opening on the Supreme Court, it was vacated by Justice Scalia.  The Obergefell decision was a 5 to 4 decision, with Justice Scalia being one of the 4 dissenting Justices.  This means that if Trump appoints a Justice to fill Scalia’s seat that is opposed to marriage equality, the make-up of the Court would be the same as it was when Obergefell was decided.  As such, there would not be sufficient votes to overrule the decision.

The difference comes if one of the other Justices were to retire or pass away.  The eldest Justices are Ruth Bader Ginsburg (age 83), Anthony Kennedy (age 80) and Stephen Breyer (age 78), and all three were part of the majority ruling in favor of marriage equality.  As such, if one of them leaves the bench, then Trump will nominate their replacement.  If he does nominate a Justice that is opposed to marriage equality and/or other LGBTQ issues, then the makeup of the Court will change and the majority would be opposed to marriage equality and other LGBTQ rights issues. (We are not going to get into the Supreme Court nominating process in this post, but we want to acknowledge that the nominee must go through an appointment process and the make-up of the Senate and the House at the time could be important to the outcome).

Even if Trump were to fill two seats on the Court, and both replacements were anti-LGBTQ rights, that does not mean that marriage equality will be overturned.  It is rare that the Court overturns a major decision, especially this soon after the ruling, as legal doctrine provides that the Court should respect and follow their own prior rulings.  That, however, does not mean that groups won’t try. Those groups would need a conflict on the issue of same-sex marriage sufficient to compel the Court to revisit the issue.  An example would be a state passing a law that inhibited or barred same-sex marriage in that state, something similar to what Tennessee attempted, to no avail, earlier this year.

What if the Obergefell decision was overruled? Well there is ample legal authority for the fact that a marriage that was valid when entered cannot be invalidated by a subsequent change in the law.  So people that are already married should not be concerned that their marriages will be invalidated.  For individuals that are not already married, but may want to do so in the future, if Obergefell was overruled then the right to marry would likely become a state’s rights issue, meaning it would depend on the state where you lived.  In Colorado we would likely lose the right to marry, in light of our Constitution, and would fall back to civil unions. Keep in mind, this is really an unlikely outcome and definitely not one that will happen in the immediate future.

The wrinkle that is FADA (the First Amendment Defense Act).  FADA was a federal bill introduced in 2015.  FADA is relevant to this discussion because in September of 2016 Trump vowed to sign FADA if passed by Congress (it has not passed Congress up to this point).  FADA essentially aims to prevent the federal government from enforcing marriage equality by preventing the federal government from taking punitive action against individuals, corporations, or organizations that discriminate against same-sex married couples.  FADA would effectively legalize discrimination against same-sex married couples. We are not going to get into all of the details of FADA here, but you can read more about it here.  For this discussion, understand it would not prevent or eliminate the right to marry, but it would give people and businesses the right to discriminate against same-sex married couples.


Adoption laws, and other laws related to families, are state laws and not federal laws.  In the State of Colorado there are various ways to establish parental rights to children, to include adoption by both parties, second-parent adoption, step-parent adoption, and obtaining an Order under the Colorado Uniform Parentage Act.  If you have obtained parental rights over your child(ren) using any of these methods, neither the President or the Federal government can take your rights away.  Each of the above methods results in a Court decree or order, which is intended to be permanent and pursuant to Supreme Court case law must be recognized by Courts in all 50 states.

In the State of Colorado, our law also provides that if a child is born during a marriage (or conceived during a civil union) the child is presumed to be the child of both parties to that marriage/civil union.  As this is a state law, federal law cannot change it.  However, this law only creates a presumption.  So, if you are the non-birth or non-donor parent, and you are relying on this law for your parental rights, you should understand that not all states may recognize your parental rights.  So, if something were to happen while you are visiting another state, or if you should move to another state and then divorce or experience the death of the other parent, that presumption may not be recognized.  To eliminate this risk, it is important to consider obtaining a court order.  In this instance, we use Colorado’s Uniform Parentage Act to help our clients obtain an Order determining the parent-child relationship, which is a relatively simple process, but results in an Order that ensures your rights to your child.

Bottom line, if you have a Court order/decree there is no risk to your parental rights.  If you do not, then you should consider options for obtaining an order/decree.

Discrimination Laws

We can anticipate seeing more states and local communities considering bills to allow individuals, business, and organizations, to discriminate against people based upon “sincerely held religious beliefs and moral convictions,” as well as bills to impact bathroom use by transgender individuals.  These laws have yet to go before the Supreme Court, so the make-up of the Court will be critical to the outcome.  If upheld these laws would allow hotels, bakers, photographers, etc. to discriminate against same-sex couples seeking to get married or just use their services, and/or would require people to use the bathroom that corresponds with their biological sex.  These laws will need to be closely watched, as they were hot button issues last year for the anti-LGBTQ groups and will likely be even bigger issues this year in light of the new administration.

Right now, the law in Colorado is that people and businesses cannot discriminate against you based upon your sexual orientation or gender identity.  As such, businesses are not allowed to refuse to provide services to a same-sex couple seeking to get married, or refuse to serve anyone that is LGBTQ.  The law in Colorado also provides that individuals can use the bathroom which is consistent with their gender identity.  As such, any changes to these laws would have to come through the Colorado legislature or by way of a Court ruling that the laws are unconstitutional or violate constitutional rights of certain people.  An example of how a Court ruling could arise would be the Colorado case related to the baker that refused to bake a cake for a same-sex couple’s wedding.  That case is currently pending and the baker is asking the Supreme Court to review it to determine if the law infringes on the baker’s rights, as he does not want to bake cakes for same-sex marriages and claims forcing him to do so violates his religious freedoms.

Executive Orders and Policies at Risk

Trump has stated that he intends to void President Obama’s Executive Orders shortly after being sworn into office.  Whether this will occur, to what extent, and when, is still to be seen, but it is a risk worth understanding.  The executive actions at risk include rules that protect LGBTQ people from discrimination by federal contractors, discrimination in healthcare and insurance, discrimination in HUD-funded programs and housing, bathroom usage in public schools under Title IX, as well as prison rape elimination regulations, and guidance on immigration visa petitions.

Additionally, transgender individuals are currently able to change their gender markers on their passport and social security cards without being required to document sex reassignment surgery.  This was the result of policies from the State Department and the Social Security Administration.  These policies may also be at risk under a new administration.  I would note that if Trump were to void all of President Obama’s Executive Orders that would not eliminate these policies, instead what would have to occur are policy changes within both agencies.  That said, if you are considering changing your gender markers, you might want to get that taken care of sooner rather than later, or at least keep an eye on Trump’s appointments to these agencies. The name change process is a different matter, as that process is a matter of state law.  As such, the President and/or the Federal government cannot change this process.  Furthermore, the process results in a Decree of Name Change, which must be recognized and honored by all Federal agencies.

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.

Updated: Marriage Equality Arrives in Colorado

coloradoStateSeal-300x300The Supreme Court of the United States denied certiorari on marriage equality appeals from several federal appellate courts, including the Tenth Circuit. Those cases involved decisions from Oklahoma, Utah, Virginia, Indiana and Wisconsin.  Thus, in those states, the previous rulings striking down their marriage bans as unconstitutional are now considered final. Conceivably, this also means that each state under the purview of those federal appellate courts will have marriage equality soon.

So, what does this mean for Colorado, one of the states within the jurisdiction of the Tenth Circuit?  There was a lot of speculation this morning on how Colorado’s Attorney General, John Suthers, who relentlessly fought to preserve Colorado’s same-sex marriage ban, would react.  However, with the following statement, his office has announced it would not fight this further:

We have consistently maintained that we will abide by the Supreme Court’s determinationon the constitutionality of marriage laws. By choosing not to take up the matter, the courthas left the 10th Circuit ruling in place. We expect the 10th Circuit will issue a final ordergoverning Colorado very shortly. Once the formalities are resolved, clerks across the statemust begin issuing marriage licenses to all same-sex couples.We will file motions to expedite the lifting of the stays in the federal and state courts andwill advise the clerks when to issue licenses.  The parties will be filing the appropriate documents with the courts and Colorado will have marriage equality.

Colorado will have marriage equality very soon.

There is currently ongoing litigation in other federal appellate courts on this matter. The Sixth and Ninth Circuits have already heard oral arguments regarding challenges to same-sex marriage bans in Kentucky, Michigan, Ohio and Tennessee (Sixth Circuit) and Idaho and Nevada (Ninth Circuit).  The Ninth Circuit is expected to rule that such bans are unconstitutional.  However, many expect that the Sixth Circuit may be the first circuit court to uphold same-sex marriage bans. If that occurs, it would create a split between the circuit courts and increase the likelihood that the Supreme Court may grant certiorari on an appeal from that decision.  Additionally, there is also an appeal regarding same-sex marriage bans in the Fifth Circuit. However, oral arguments will not be heard in that appeal until later this year.

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.

Social Security Administration announces regulations for same-sex marriage claims

ssa_fB_Logo-e1373909751753Since the Supreme Court issued the Windsor decision in late June declaring Section 3 of DOMA unconstitutional, we have been awaiting clarification on exactly how federal benefits will be applied nationwide to same-sex married couples. If a same-sex married couple lives in a state that recognizes their marriage, i.e., a “recognition state,” then it is fairly clear that most federal benefits and burdens will indeed apply to that couple. However, if a same-sex married couple lives in a state that does not recognize their marriage, i.e., a “non-recognition state,” then the availability of federal benefits and burdens is unclear, and many will not apply.  The latest clarification to be released pertains to Social Security claims for same-sex spouses, officially referred to as “Windsor same-sex marriage claims.”

As of now, Social Security claims will be based upon the law of the couple’s state of residence.  Thus, only married same-sex couples who live in a state that recognizes their marriages will be eligible to receive the Social Security spousal benefit.  The decision appears to be based upon a regulation pertaining to Social Security claims that states a marriage is valid for Social Security purposes “if the courts of the State in which such insured individual is domiciled … would find that such applicant and such insured individual were validly married.”  To read the official release from the Social Security Administration, go here.

Other federal benefits and burdens that have been addressed since June include federal employee benefits, military spousal benefits and immigration.  Each of those have been applied more generously, based upon the state of celebration rather than of residence. The Office of Personnel Management released a Memorandum explaining that for purposes of federal employee benefits, the government will look to the state of celebration rather than the state of residence to determine whether federal employees can cover their same-sex spouses.  In other words, if a federal employee is in a same-sex marriage obtained in a state , that employee can cover his spouse under his federal employee benefits, regardless of where that couple resides. Similarly, the Department of Defense announced that spousal military benefits will be extended to the same-sex spouse of a military member, regardless of whether that couple lives in a recognition or non-recognition state.  Finally, Immigration and Naturalization Services now looks only to the state of celebration to determine whether a same-sex couple is entitled to spousal protection for immigration purposes, regardless of where they reside.


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.

Failing to Update Your Life Insurance Beneficiary May Mean Your Ex-Spouse/Partner Receives the Proceeds

S.Ct. BuildingRarely does the Supreme Court weigh in on issues related to estate planning but in this term, it did just that.  The Court’s decision In Hillman v. Maretta centered on what happens when a decedent’s life insurance beneficiary is his ex-spouse, i.e., the decedent did not change the beneficiary designation after their divorce. Many states have laws addressing this circumstance. For example, in Colorado, state law dictates that upon divorce, any life insurance beneficiary designation naming the person’s ex-spouse is automatically revoked.  Virginia law, the state out of which the Hillman decision arose, has a similar law.  The Virginia law is two-fold.  First, it provides any designation of a spouse is deemed revoked upon divorce and the proceeds will be distributed as if the designation had never been made.  Second, it provides if the first part of the law is held to be preempted, then whoever would be entitled to the life insurance proceeds under state law may sue the former spouse to recover any proceeds paid.

In Hillman, the decedent was a federal employee and the life insurance policy at issue fell under the Federal Employees’ Group Life Insurance Act (FEGLIA).  FEGLIA provides that the proceeds of federal life insurance policies shall be paid to designated beneficiaries before anyone else.  There was no disagreement among the parties that FEGLIA preempted the first part of the Virginia state law regarding automatic revocation of an ex-spouse beneficiary. However, the dispute centered on the second part and those defending the state law argued that in FEGLIA, Congress was merely striving for the administrative convenience of knowing where to pay the funds, a convenience not disturbed by a subsequent lawsuit between the parties to recover those funds.

The Court rejected that argument.  Relying on legislative text and history, the Court reasoned that Congress sought not only administrative convenience but also to honor the employee’s choice of beneficiary.  The Court held that FEGLIA preempted both sections of Virginia’s law as interfering with Congress’ legislative scheme, because Virginia law hinges on a finding that the proceeds actually ‘belong’ to someone other than the named beneficiary.  The Court acknowledged that “[o]ne can imagine plausible reasons to favor a different policy” as employees often forget to update beneficiaries following divorce.  However, the fact remains, FEGLIA does not provide an exception or divorce revocation and under the principles of preemption, it controls over Virginia’s state law in this area.

In Hillman, this meant that the insurance proceeds went to the decedent’s ex-wife, rather than to the woman that was his wife at the time of his death.

Though this decision is limited to life insurance policies tied to federal employment, it serves as a reminder to review and update your estate planning regularly, including your life insurance beneficiary designations.

To read the opinion in its entirety, go 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