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A Modest Prediction

Plenty has been said and written since the Supreme Court heard arguments last week in two same-sex marriage cases. There seems to be broad agreement that the Court will dismiss Hollingsworth v. Perry without reaching a decision on the merits, ruling that the group of people defending California’s Proposition 8 (which amended the California constitution to define marriage as a union between a man and a woman) did not have standing to appeal the case, as none of its members can show that they would be harmed by same-sex marriage.The form of the dismissal would determine whether the district court or the appellate court ruling (both of which struck down Proposition 8 ) would prevail.

At the same time, many commentators predict that the Supreme Court will decide the case of Windsor v. U.S. on the merits (despite its own complications with standing) and that a majority of five justices will strike down the federal definition of marriage in the Defense of Marriage Act. (DOMA has two principal parts – one defining marriage for federal purposes, and the other providing that a state does not have to recognize a same-sex marriage from another state.) Most observers agree that Justice Kennedy will join the four more progressive justices (Breyer, Sotomayor, Ginsberg, and Kagan) in declaring the federal part of DOMA unconstitutional. But among those who think that the federal definition in DOMA will be struck down, some predict that the five justices will not be able to agree on the theory for striking it down, and predict that, rather than 5-4, the vote will be 4-4-1, with Justice Kennedy concurring with the four more liberal justices in the result, but writing separately.

In an article in the New York Review of Books, Professor David Cole explained the different approaches reflected in the justices’ questions: “The Court’s four liberal justices made clear that they see no good reason for excluding gays and lesbians from marriage under state or federal law, and Justice Kennedy, the likely swing vote, repeatedly expressed concern that DOMA interferes improperly with the states’ power to regulate marriage.” In other words, Justice Kennedy seems inclined to strike down the federal part of DOMA because it violates principles of federalism, or the states’ authority to define marriage, while the four more liberal justices seemed comfortable with a straightforward equal protection analysis – it is a violation of equal protection principles in the Constitution for same-sex couples to be denied access to marriage. A libertarian scholar says there is a realistic chance that Justice Thomas (!?) would agree with Justice Kennedy that DOMA is an unconstitutional encroachment on the authority of states to regulate marriage.

As with most debates, there is a middle ground. I believe that the majority – Justice Kennedy and the “four liberal[s]” – will decline to adopt an intermediate level of scrutiny, as
advocated by Solicitor General Verrilli, or explicitly employ a rational basis standard for striking the federal part of DOMA. Rather than assign a level of scrutiny to the kind of discrimination codified in the federal part of DOMA, I think that the five justices might be able to join in an opinion employing  a federalism-infused equal protection theory to
strike it down. The principle can be stated as follows: the federal government cannot restrict a state’s authority to give its citizens equal access to marriage without a valid reason.

As the First Circuit panel said in the combined Gill v. OPM/Massachusetts v. U.S. decision, 682 F.3d 1 (1st Cir. 2012),, which was not argued before the Supreme Court, “Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”  Notably, the First Circuit panel said that DOMA survives conventional rational basis review and the court declined to apply intermediate scrutiny. Rather, citing decisions that did not invoke traditional tiered equal protection analysis, the court said it was looking particularly closely at the federal government’s justifications for DOMA, in light of its encroachment on state authority. The court concluded: “Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

Roberta Kaplan, representing the Plaintiff, Edith Windsor, argued forcefully  that the federal part of DOMA fails even under rational basis review – that is, that the federal government has no legitimate basis for discriminating against same-sex married couples. Neither Ms. Kaplan nor SG Verilli stressed the First Circuit, federalism-infused analysis, both leading with arguments for a straightforward application of equal protection analysis. When asked initially by Chief Justice Roberts if the administration thinks “there is a federalism problem with what Congress has done in DOMA,” SG Verilli said, “[N]o we don’t, Mr. Chief Justice.”  But he clarified the administration position in response to this question from Justice Kagan: “[S]urely the question of what the Federal interests are and whether those Federal interests should take account of the historic state prerogatives in this area is relevant to the equal protection inquiry?” To that, SG Verrilli responded that a consideration of federal interests vis-à-vis “historic state prerogatives” was “central to the inquiry.” I believe that five justices will agree.

Marcia Kuntz

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