Of Counsel: Last Week at the Supreme Court, Explained

Jon W. Davidson, Legal Director
Of Counsel: Last Week at the Supreme Court, Explained
December 13, 2012
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Last week, the Supreme Court decided to hear one of the challenges to Section 3 of the so-called Defense of Marriage Act (DOMA), which bars federal recognition of same-sex couples’ marriages, and also to hear the challenge to California’s Proposition 8. For the first time in history, the Court will be hearing two gay rights cases in one term, focusing public attention on the right of lesbians, gay men and bisexuals to equality under the law and of same-sex couples to have their relationships treated equally by the federal government and, at least, by the State of California.

What Does It Mean?

As we know, the decision to hear a case does not mean that the Court thought the lower courts got it wrong. It means the justices want to have the cases fully briefed and argued to them before they make a decision about the issues. So, in both the ACLU’s Windsor v. United States case and in AFER’s Hollingsworth v. Perry case, the parties will file briefs early in 2013 and the Court is likely to hear argument in late March, with decisions expected by June 27. Lower courts have already ruled in Windsor that Section 3 of DOMA is unconstitutional, and in Perry that Prop 8 is unconstitutional. As we have in the lower courts, Lambda Legal will be submitting amicus briefs in both cases, using our expertise to make key arguments to the justices.

Levels of Scrutiny

Both the Windsor and Perry cases raise the critically important issue of how courts should approach laws like DOMA and Prop 8 that discriminate based on sexual orientation. We and the Department of Justice (along with plaintiffs’ counsel in Windsor and Perry) believe that such laws should be presumed unconstitutional and subject to “heightened scrutiny.” Under that test, the burden is on the defenders of such laws to prove that they at least substantially further an important government interest. Because lesbians and gay men have suffered a long and shameful history of discrimination in this country, and because sexual orientation is not a characteristic that is related to whether or not people can contribute to society, heightened scrutiny should apply. This is one of the important issues upon which the Court may rule.

We also believe, however, that, even if that is not how the Court rules, Section 3 of DOMA and Prop 8 cannot pass the lowest level of judicial scrutiny, because those laws do not further any legitimate government goal.

Standing

But, the Supreme Court may not ultimately decide the merits of either case. In addition to requiring briefing on the substantive issues in the cases, the justices asked the parties in both to address whether the entities seeking Supreme Court review had the right to appeal the lower courts’ rulings. The “Bipartisan Legal Advisory Group” (BLAG, which is controlled by the Republican House leadership) argues that the Department of Justice (DOJ) does not, because DOJ’s position that Section 3 of DOMA is unconstitutional won in the lower courts—and, BLAG argues, the side that won does not have standing to appeal.

But BLAG is only a committee of the House, so there also are questions about its standing. The Supreme Court has invited Harvard Law School Prof. Vicki Jackson to brief and argue these issues, to ensure there is neutral briefing on them. Because an injunction was issued ordering the executive branch to stop enforcing DOMA, as it is currently doing, we believe that DOJ should have the right to appeal.

Likewise, there are questions about whether the proponents of Prop 8 had the right to appeal, since they are not themselves legally harmed by same-sex couples being able to marry again in California. The Supreme Court asked the parties in Perry to address this too and, if the Court concludes they did not have standing, Judge Walker’s trial court ruling that Prop 8 is unconstitutional will stand, and same-sex couples will be able to marry in California once again.

Lambda Legal Cases Still on the Docket

Lambda Legal has a pending DOMA challenge in which a lower court has already ordered that equal healthcare coverage be provided to the spouse of our client, Karen Golinski. Our case is now pending before the Ninth Circuit Court of Appeals, and the Supreme Court has not yet taken action in the request before it to hear that case. Nor has the Supreme Court taken action on a second Lambda Legal case before them, Brewer v. Diaz, where the state of Arizona has asked the justices to review a preliminary injunction we obtained that requires the state to maintain domestic partner health insurance coverage for the state’s lesbian and gay employees as that case proceeds. Finally, we recently filed notice of appeal to the Ninth Circuit Court of Appeals in our marriage equality case in Nevada, Sevcik v. Sandoval, where the trial court ruled against our plaintiffs. But, in an unusual move, the antigay Coalition to Protect Marriage filed a pre-judgment cert. petition seeking Supreme Court review of this case prior to intermediate appellate review. Lambda Legal will oppose cert. and we expect the Supreme Court to allow this case to proceed through the Ninth Circuit, as is the normal course.

Where Things Stand

Unfortunately, the Court’s decision to take up the Prop 8 case means the right of same-sex couples to marry in California will remain on hold until at least the summer. In the interim, there is work for everyone to do. Lambda Legal will be busy developing the best arguments we can for victory in both these cases, and everyone who believes in this fight needs to continue the process of educating our families, neighbors and co-workers that the Constitution’s mandate of equal protection applies to us all, including the millions of same-sex couples whose rights are most directly at stake in these cases. Similarly, with respect to DOMA, a legislative solution also remains possible, and people should contact their representatives in Congress to urge support for the pending Respect for Marriage Act, which would repeal DOMA in favor of respecting all validly-entered marriages, regardless of whether they involve different-sex or same-sex couples.

Of Counsel is Lambda Legal’s bimonthly newsletter offering special insight for the legal community, including analysis of Lambda Legal litigation and reflections on strategies and tactics. Subscribe today!

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