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Chemerinsky: Same-sex marriage battle goes before the Supreme Court

By Erwin Chemerinsky

March 25, 2013, 2:05 pm CDT

The Supreme Court will have oral arguments tomorrow and Wednesday on the question of whether laws requiring that marriage be between a man and a woman violate the constitutional rights of gays and lesbians. What are the cases? What are the issues? What might the court do?

The Cases

Tomorrow the court will hear arguments in Hollingsworth v. Perry, which involves the constitutionality of California’s Proposition 8 which amended the California Constitution to say that marriage must be between a man and a woman. In May 2008, the California Supreme Court interpreted the California Constitution to create a right of marriage equality for gays and lesbians. In November 2008, California voters passed Proposition 8 to overturn this decision.

Two same-sex couples seeking marriage licenses brought a lawsuit in U.S. District Court for the Northern District of California challenging the constitutionality of Proposition 8. In the summer of 2010, federal District Judge Vaughn Walker declared Proposition 8 unconstitutional as violating the fundamental right to marry and denying equal protection to gays and lesbians. The defendants in the lawsuit, including the governor, the attorney general, and the registrar of records refused to appeal Judge Walker’s ruling. Supporters of Proposition 8 intervened to appeal.

After briefing and oral argument, the 9th U.S. Circuit Court of Appeals certified to the California Supreme Court the question of whether under California law the supporters of an initiative have standing to appeal when state officials refuse to do so. The California Supreme Court said that this is permissible and the 9th Circuit, in February 2012, declared Proposition 8 unconstitutional. The 9th Circuit emphasized that California had extended the right to marry to both same-sex and opposite-sex couples, but Proposition 8 took this right away only from same-sex couples; the court said that denied equal protection.

On Wednesday, the Supreme Court will hear oral arguments in United States v. Windsor. Edith Schlain Windsor and Thea Clara Spyer met in 1963 and lived together as a couple for over 40 years, until Dr. Spyer’s death in 2009. They bought a house together on Long Island and shared an apartment in Manhattan. They were married in Toronto in 2007.

Windsor and Spyer provided for one another in their wills. Spyer’s will made Windsor executor and sole primary beneficiary of her estate. Under the Internal Revenue Code, an estate like Spyer’s would usually qualify for an unlimited marital deduction and would therefore pass to the surviving spouse without imposition of the federal estate tax. But Section 3 of the Defense of Marriage Act says that for purposes of federal law marriage must be between a man and a woman. The result is that Spyer’s estate owed $363,053, which would not have been owed if not for Section 3 of DOMA.

Windsor filed a suit in federal district court challenging Section 3 of DOMA. Shortly before the answer from the United States was due, Attorney General Eric Holder announced that it was the position of the United States government that it would enforce Section 3 of DOMA, but not defend its constitutionality in the courts. The Bipartisan Legal Advisory Group of the House of Representatives (BLAG) voted 3-2 along party lines to participate. The district court allowed BLAG to intervene and granted summary judgment for Windsor. In October 2012, the 2nd U.S. Circuit Court of Appeals affirmed and declared Section 3 of DOMA unconstitutional as denying equal protection to gays and lesbians.

The Issues

First, in each case there is a significant procedural issue which may cause the court to dismiss without reaching the merits of the right to marriage equality. In Hollingsworth v. Perry the question is whether the supporters of an initiative have standing to appeal to defend it when the defendant state officials refuse to do so. The California Supreme Court said that under California law the supporters of an initiative may represent the interests of the state in such circumstances.

But the question is whether that is sufficient to meet the standing requirements of Article III of the Constitution. The Supreme Court long has said that Article III requires a concrete injury for standing; an ideological interest is not sufficient. Do the supporters of Proposition 8 suffer any injury, other than an ideological one, if it is invalidated?

In United States v. Windsor, the court has granted review on the questions of whether the executive branch’s agreement with the court below that DOMA is unconstitutional deprives the court of jurisdiction to decide this case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has Article III standing in this case. The court appointed Harvard law professor Vicki Jackson as an amicus to brief and argue these jurisdictional questions and she contends that the court lacks jurisdiction.

If the court dismisses one or both cases on standing grounds, the question then will be the effect of the dismissals. In Hollingsworth, the answer seems clear: the same-sex couples seeking marriage licenses had standing to sue in district court and the district court thus had jurisdiction to issue an injunction against the governor, the attorney general, and the registrar of records keeping them from enforcing Proposition 8.

If the court holds that the supporters of the initiative lacked standing to appeal, then the district court’s statewide injunction will go into effect and same-sex couples can marry in California. But in Windsor, the effect of dismissing the appeal for lack of standing would be that Windsor would prevail, but Section 3 of DOMA would otherwise seem to be in effect.

Second, assuming the court does not dismiss on standing grounds, there are both equal protection and due process challenges to the denial of marriage equality before the court. Both the 9th Circuit in declaring Proposition 8 unconstitutional and the 2nd Circuit in striking down Section 3 of DOMA focused on the denial of equal protection for gays and lesbians. The briefs raise the question of what level of scrutiny should be used for sexual orientation discrimination. The United States, for example, argues for heightened scrutiny. Of course, the court could find an equal protection violation without reaching the question of the appropriate level of scrutiny by concluding that laws denying marriage equality fail rational basis review.

Also before the court is the question of whether the right to marry, which the court has deemed a fundamental right, is violated by limiting marriage to opposite-sex couples. The district court in the Proposition 8 case found the initiative unconstitutional on this basis, as well as it denying equal protection to gays and lesbians.

Third, the court will need to decide whether there is a sufficient government interest in denying gays and lesbians of the right to marry. The supporters of Proposition 8 and DOMA argue that marriage has historically been between a man and a woman. Their central argument is that marriage is primarily about procreation. The brief by the petitioners in Hollingsworth v. Perry declares: “an animating purpose of marriage is to increase the likelihood that children will be born and raised in stable and enduring family units by their own mothers and fathers. Because relationships between persons of the same sex do not have the capacity to produce children, they do not implicate this interest in responsible procreation and childrearing in the same way. The Equal Protection Clause does not require the state to ignore this difference.”

But the supporters of marriage equality sharply disagree with the claim that marriage is primarily about “responsible procreation.” They argue that opposite-sex couples always have been able to marry without inquiry as to whether they desired or could have children. Moreover, same-sex couples will have children whether or not they can marry–gay couples through surrogacy and adoption, lesbian couples through artificial insemination and adoption. If marriage is desirable for family stability, as petitioners claim, then children of these relationships are better off with married parents.

If the court reaches the merits, it will have to decide whether it is persuaded by the justifications offered by the supporters of Proposition 8 and DOMA.

What Might Happen?

There are a large range of possibilities. The court could dismiss one or both cases on standing grounds. The court could uphold Section 3 of DOMA and Proposition 8. If the court strikes down Section 3 of DOMA, the result will be clear: there are about 1,100 federal laws that provide benefits to married couples and same-sex couples in the United States who are married will be able to gain these benefits. The court could write its opinion relatively narrowly, so that it just invalidated Section 3 of DOMA and left for each state to decide for itself whether to allow marriage equality. Or the court could write its opinion broadly to indicate that all laws denying gays and lesbians of the right to marry are unconstitutional.

The court could strike down Proposition 8 in a number of different ways. It could follow the 9th Circuit’s approach, which would have effect only in California since it is the only state to extend the right to marry to gays and lesbians and then take that right away. It could take the approach urged by the United States and find that there is a constitutional right to marry for gays and lesbians only in states that have created civil unions or domestic partnerships. This would extend the right to marry for gays and lesbians to eight additional states. Or it could find that laws denying gays and lesbians the right to marry are unconstitutional, which would extend the right to marry to all 50 states.

Perhaps the oral arguments will give some indication as to what the court is going to do, but almost certainly we will have to wait until at least June to know the results in these momentous cases.

Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.