Hot action and cold cash: gay marriage in front of the Supreme Court

I always end up answering a page and a half of questions about gay marriage litigation and I’d love if I could pre-empt that but it’s already too late.  So here are some notes about the current cases in front of the Supreme Court.

There are two cases.

The Prop 8 case, Hollingsworth v. Perry, is about two issues.  First, whether the plaintiffs have standing to bring the case, and second, whether the equal protection clause of the 14th Amendment prevents California from limiting marriage to one man and one woman.

What should have happened: the plaintiffs’ claim for standing is really thin.  The state of California declined to pursue this case, and the people pursuing it can’t show that they’ve suffered any injury from same-sex marriages in California.  Their best argument is that they’re standing in for the state and residents of California, and I honestly do not know why the California Supreme Court let them do this.

What this would mean: if the case is dismissed for lack of standing, it means the constitutional issue won’t be addressed.  That would also mean we’re back to the decision Judge Walker made ages ago, invalidating Prop 8.

Hey, wait, won’t that mean the Supreme Court is avoiding the issue?  Yes.  The Supreme Court does that.  Making rulings about the Constitution is tricky business and it’s good to be extremely careful about setting precedents, because we don’t know what’s going to happen in the future.  Generally speaking, if a case makes it up to the Supreme Court, and the Justices find that they can decline the issue because a lower court dealt with it adequately, they do that.  If they find that there is a state law that takes care of the issue in question, they go with that.  If they find some other way to settle things, they take it.  This is okay.  A lot of people feel like they should swoop in like some poorly-designed superhero team and right all the wrongs with the power of the Equal Protection Clause, but a lot of this is about avoiding trouble in the future and what a pain in the ass it is to overturn a bad decision.

Also, here it would mean the bad guys lose.  Cool.

Prediction: dismissed for lack of standing, 5-4, Kennedy, Kagan, Breyer, Ginsburg, and Sotomayor for the majority; Scalia, Alito, Thomas, and Roberts dissenting, with a truly embarrassing rant from Scalia about the traditional value of hating queers.

Maybe Roberts will turn around and do the right thing, who knows.  He might be stepping up to challenge Kennedy for the position of most powerful person in the country, I mean, swing vote.

Now the other case, U.S. v. Windsor.

Issues: First, whether Clause 3 of DOMA violates the Fifth Amendment’s equal protection clause.  Second, whether the Executive Branch agreeing with the lower court that DOMA is unconstitutional means that the Supreme Court doesn’t have jurisdiction to hear the case because that wraps it all up.  Third, whether Boehner’s group of whiny conservatives has standing to step in where the President has already declined.

What the case is actually about: Edie Windsor had to pay a substantial estate tax on her inheritance from her wife, and if their marriage had been recognized like straight people’s marriages, she wouldn’t have had to.  On the one hand, this is clearly unfair.  On the other hand, I have very little sympathy for rich people having to pay taxes.  Solution: let’s recognize everyone’s marriage and tax rich people like mad!  Who’s asking me for a solution: not even the three readers of my blog.  Oh well, on with the analysis.

What Clause 3 of DOMA says: 

Section 3. Definition of marriage.  In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Why this violates the equal protection clause of the Fifth Amendment: it’s a deprivation of property without due process.  Ms. Windsor is being denied the right to inherit her wife’s estate because she and her wife were both women.  At the time of her wife’s death, the state of New York recognized same sex marriages from other jurisdictions.  Ms. Windsor and her wife had gotten married in Canada, because Canada is ahead of us on this one and anyone who can pay a six-figure estate tax can easily afford a trip to Toronto.

Wait, what’s the difference between equal protection under the Fifth Amendment versus equal protection under the Fourteenth Amendment?  What a great question!  I’m so glad you’re paying so much attention.

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Fourteenth Amendment, equal protection clause:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Yep, pretty similar.  Essentially, the Fifth Amendment here is because the issue is about what the federal government is doing, and the Fourteenth Amendment in the other case is because the issue is about what a state is doing.  The Bill of Rights was about protecting citizens from the federal government, and the Fourteenth Amendment was part of giving states the smackdown in the post-civil war reconstruction, along with the Thirteenth Amendment, which says you can’t have slaves, and the Fifteenth Amendment, which says voting can’t be restricted by race.

My prediction: 5-4 in favor of Ms. Windsor, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan in favor, Kennedy writes the majority opinion as he did in Romer v. Evans and Lawrence v. Texas.  Scalia, Thomas, Alito, and Roberts in dissent.

As an aside, I think that Romer is actually the precedent most on point: you cannot enshrine in the law a right to discriminate, from the case on Colorado’s Amendment 2.  Other people think the big case is Lawrence v. Texas, which says you can’t criminalize consensual sex between adults, but I don’t think that matters because this isn’t about hot action, it’s about cash.

What’s the president’s opinion got to do with it?  So far on this case, the New York District Court ruled that even under rational basis review, section 3 of DOMA is unconstitutional and Ms. Windsor should get her money back.  The President and the Executive Branch generally have agreed that DOMA is unconstitutional, and are declining to support it.  The Supreme Court has to decide whether the combination of these two things, a lower court ruling and the official Executive Branch opinion, mean that that settles things.

My prediction: I think these two things don’t mean it’s settled.  The Supreme Court doesn’t generally think it’s good to rule that they have to keep their fingers out of the pie.  I’m thinking about the cases on the military tribunals in Guantanamo, and how President Bush tried to knit things up so that there was no recourse for people being held there, no appeal, no habeas corpus.  The Court ruling that they couldn’t touch certain things could lead to some ugly abuses of power by the Executive Branch.  I don’t have a prediction on the vote here: this could easily be a unanimous decision.  The conservative Justices may not like gay people very much, but they are rightly concerned with the balance of power between the branches of government.

What’s John Boehner got to do with it?  When the President declined to defend DOMA, Boehner turned orange, cried, and got together a bipartisan group of haters to stand together against the horror of gay people getting the benefits their tax dollars pay for.  His group is trying to do the same thing that the proponents of Prop 8 are trying to do, and gain standing in the name of the federal government.

My prediction is that this has got a better shot than the Prop 8 plaintiffs had because Boehner’s group is a chunk of the Legislative Branch.  I’m guessing there’s an appropriate procedure for this that they didn’t follow, though. No prediction on the vote, but even if they do have standing I don’t think this will be outcome determinative.

Final analysis: DOMA is on its way out.  It’s possible that the Court will decline to decide Windsor in some creative way, but the tide has shifted on this enough that I think they want to wrap this up.  It’s clear what most of the Justices are doing.  Scalia, Thomas, and Alito are rabidly anti-gay and will hold that DOMA withstands heightened scrutiny but isn’t entitled to more than rational basis review.  Kagan, Sotomayor, Breyer, and Ginsburg think gay people are real citizens and will move to kill DOMA as a violation of equal protection.  Kennedy is tending toward the liberals and has a decent history of supporting gay rights.  Roberts tends toward the conservatives in general, but has asked some decent questions.

If I’m wrong: There are plenty of other ways to challenge DOMA, and there are even more ways to improve the lives of LGBT folks in the US and worldwide, very few of which depend on what a court says.