Category: Marriage

I have decided to leave the previous blog as it was (save for a typo). I should clarify that it is not the timing of the court’s anticipated decision that is important, except that we should not assume that it must necessarily be delayed until June; it is the question of whether that decision, whenever it comes, is an extensive, reasoned, landmark decision, setting forth reasons for mandating marriage equality, or merely a slap in the face of the Sixth Court—for arguing issues that have no place in an American court (the sociology of marriage), more that for merely being wrong in their conclusions—and terse reversal of their error. American courts are unusual in that they are prohibited from considering general questions, laws in the abstract, or the general welfare; those issues may arise in argument and opinion, but the only issue that an American court may properly adjudicate is a dispute between parties, one aggrieved and the other able to correct the problem. That is why the court denied standing to the proponents of Proposition 8 (the California constitutional amendment): the proponents had no power to rectify the putative wrong done to the plaintiffs. The government of California, in the person of the governor and the attorney general, having withdrawn from the case, and thus, alleviated the wrong, the case before the Supreme Court was moot.

Let me review the recent events that lead me to believe that this issue—marriage equality—was decided long ago:

In United States v. Windsor (2013), the court held, among other things, that the United States could not interfere with a state’s definition of marriage that granted equality to same-sex couples. (That does not mean, pace opponents of marriage equality, that such definitions are exempt from the restrictions imposed on all American governments by the Constitution of the United States.) In doing so, the court accepted, on behalf of the United States, the possibility that the word “marriage” could include same-sex couples. This is important because one of the favorite arguments of the opponents of marriage equality is that it makes no sense to refer to a same-sex couple as married; they insist that violence must be done to the very meaning of the word to allow it to include same-sex couples. While the Windsor court did not explicitly say that same-sex marriage was required by the Constitution, they clearly understood the concept and accepted that it had validity. The court also discussed the grave harm imposed on same-sex couples, notably their dignity, by unequal application of the marriage statutes. The court noted that they were not mandating a constitutional right to marriage equality. Justice Scalia, in his dissent, said that they were doing precisely that (a warning he has been sounding since his dissent in Lawrence v. Texas ten years before), and he predicted that the issue would be back in the following term; the calendar did not oblige, but he was only off by one year, and not even a whole calendar year.

The court did another thing: they imposed on the country a partial solution. Sober reflection on what they wrote in Windsor, and its implications for the lives of citizens affected by it, should have led, maybe did lead them to the understanding that they were visiting a torrent of ambiguity and legal wrangling on the country. (Because of geography much of the legal wrangling landed on the desks of the Fourth Circuit and probably informed that court’s ill-tempered refusal to stay their decision in favor of marriage equality in Bostic v. Schaefer (2014), despite a near certainty that the Supreme Court would reverse them, as it did routinely until October 2014.) A charitable interpretation of the justices failure to address this problem of which they could hardly have been ignorant, is “judicial restraint”: a desire to make the narrowest ruling and await developments before turning to the consequences of their actions; another interpretation would be “judicial cowardice”.

In the event, they ruled narrowly and lawsuits sprung up across the country, like dandelions after a spring rain; some were motivated by the judicial chaos engendered by Windsor, some by perceived opportunity to attain the long-desired goal; and of course the desire of counsel to write their names in the law books.

Cases arose from every state in the union, with varying complaints and issues, all related to the denial of the fundamental right to marry. Some cases had been in progress for a decade or more, some were filed and passed through the appeals courts in less than a year. In almost every case (the initial run was over twenty consecutive cases without a loss) and with near judicial unanimity the verdict was rendered. Judges were citing the opinions of colleagues the day they were published. Interestingly the first victory in a circuit court of appeal was from Utah—go figure!

One important refrain, not universal, but common was that despite the Supreme Court’s declaration, in Windsor, that they were not deciding the issue of the constitutionality of same-sex marriage, court after court, both a the district and the circuit level opined that they most certainly had made that decision in the clear implication of their ruling and their elucidation of it.

Which brings me to October of last year, the beginning of this term for the Supreme Court. As I have written elsewhere, I expected the court to avoid writing a decision, and they did not write. Seized with numerous appeals from three circuit courts, they denied cert. with unusual haste. Denial of cert. does not imply anything in terms of legal precedent, but as I wrote Friday, when it seems to transform a very large percentage of the judicial landscape, questions arise and answers follow. Faced with a landmark issue the court may well deny cert. when it deems the issue is not “ripe”, but usually such a denial is of a single case, or a small group of cases, and, most importantly, leaves the status quo ante undisturbed; it distresses the plaintiffs in the particular case, delays the sought-for resolution, but rarely, if ever, does such a denial allow a sweeping change to settled law stand, when it is the creation of the lower courts. As I wrote on Friday, there was absolutely no pressure on the court to act when they did. They could have waited weeks, or months, before denying cert. without causing any undue curiosity, and we would have arrived at today, with all those cases pending, waiting for the long-awaited pronouncement from the nine justices. They could have waited even longer, but to go beyond June and the end of the current term would have raised questions. It is hard to see how, if there was any intention in their conference seriously to consider reversing those rulings, they would not have waited. Moreover if they had wanted to write an opinion on the subject, they could have waited, or accepted one or more of the cases before them. Their action, in denying cert., accomplished two things: 1) it made marriage equality mandatory across much of the country; 2) it avoided the need for them to write an opinion.

Their denial of cert. caused jubilation in the Fourth, Seventh, and Tenth circuits, and some consternation in friends of mine who found themselves living in a Michigan suddenly behind Indiana, not to mention Utah, in the matter of gay rights. Cases in other circuits ground forward, but the Supreme Court in a change from previous behavior denied stays of lower court orders in favor of marriage equality.

A stay is another action that carries no value as precedent, but stays are granted largely based on two criteria: the relative damage to the parties if the stay is, or is not, granted, and the likelihood that the party requesting the stay will prevail. The most likely significant, short-term damage, in the court’s opinion, is that the plaintiffs would be denied a fundamental right, and if that is the case, any review of the underlying order would elicit heightened scrutiny (in other words it would be hard to deny their right). The likely standard for “probability of success” in such a high-profile case with such sweeping consequences, would, think I, be something like “we will hear arguments, and read briefs, but if nothing substantial changes, plaintiffs will succeed.” Note that Justices Roberts and Alito voted to deny the stay in at least two cases—Scalia and Thomas wrote dissents in both—indicating their evaluation of the combination of the legal damage that a stay would cause and the likelihood of the plaintiffs prevailing was in the plaintiffs favor (i.e. that marriage equality would become the law of the land). Lower courts may have to speculate on the outcome when evaluating a request for a stay: the Supreme Court knows that they will make the final decision themselves.

The court wants to avoid a disquisition that would open further considerations and saying nothing will mandate marriage equality without further action.

So, with baited breath, we await a decision that was written and published almost two years ago.

[This post is unedited and incomplete. I am publishing it against the possibility that the Supreme Court will release their ruling Friday morning. I will complete the post tomorrow.]

 

As we wait for the Supreme Court to dispose of the question of equality in marriage, we reflect on the oral arguments. I have to admit that my initial reaction was negative, disappointed. There were a lot of questions that I would classify as ignorant. But there were also a couple (perhaps more) that were salient in their clarity: John Roberts asked how denying a man the right to marry someone just because he was a man could be considered anything other than discrimination on the basis of sex; and Justice Ginsberg enunciated the answer to the oft repeated question (by Anthony Kennedy, e.g.) “How can the court over turn millennia of tradition?”, but as Ginsberg pointed out, the court will not rule, cannot rule on cultural or religious tradition; its jurisdiction extends no further than American civil marriage, which has existed for less than 250 years, and in that time has been transformed from an age-old institution that was based on rigidly gendered roles, to one that is completely free from and gender distinction; as the justice opined same-sex couples would not be much interested in a union based on gender distinction, whereas they are just as well suited for an gender-neutral union as are opposite-sex couples.

Most people are hoping for a landmark decision setting forth elaborate explanations of the issues and justification for the outcome; they believe that the decision will be held, as are most significant decisions, until June and the end of term. I would not be surprised to see a terse reversal as early as Friday.

It is a truism that you should not draw conclusions from oral arguments, but the temptation is very great. In this case, I believe that the court disagrees with the populace, the bar, and the press as to what was at stake last Tuesday. The latter groups seem to hold that we witnessed arguments in preparation for a landmark decision and that however misleading the questions might have been, they were intended to elicit information to inform the coming opinions. The court, think I, was doing what the Canadian bar calls “natural justice” expressed as “audi alteram partem” (I hear the other side), demonstrating that they have heard the arguments, such as they are, from the opponents of marriage equality. In lieu of a written opinion, they have indulged the Sixth Circuit and respondents with an audition. What is at stake is not a landmark decision, but a simple reversal of a circuit court that completely misread the law, could not take a hint, and offered an opinion that avoided all the actual issued before it completely.

Another set of actions by the court that are not to be interpreted as binding are refusal to grant cert. and actions on stays. Nevertheless, the court should not be assumed to deny cert. or grant stays without reason, and what may not be binding in a court of law, can certainly inform our understanding.

Last October, the court was presented with a set of cases from the Fourth, Seventh and Tenth circuits. Those cases represented, directly or indirectly more than twenty cases that held, with near unanimity, that the Supreme Court’s ruling in Windsor implied that inequality in marriage was indefensible and unconstitutional. Although near unanimous, those cases presented a wide variety of arguments and opinions argued and presented by some of the finest legal minds in the country; it would be rash to assume that the court denied cert. because the issue was not “ripe”. The fact that opinions opposing marriage equality were underrepresented and weak should not have influenced their decision: the court serves not only as a referee between divergent circuit courts, but also as a check on judicial error from below, and what such error could be more worth of correction than one that affected a large part of the country and so very many judges?

Nevertheless the court denied cert., not only did they do so, they did so with unusual dispatch. The Sixth Circuit, which was considering appeals at odds with the prevailing opinions, might have reflected that, if the Supreme Court wanted to adjudicate the issue, they could easily have waited a few weeks to see what the Sixth Circuit would do, and if necessary, include them in their considerations. The Sixth Circuit would not have been remiss to consider that the unusual haste of the Supreme Court’s denial may have been to warn them off a divergent opinion. In the event the Sixth Circuit did not take the hint, and entered their opinion which is remarkable in that it did not discuss, to any great extent, the merits of the case before it, choosing instead to opine on social issues.

As we wait for the Supreme Court to answer the Fourth Circuit’s refusal to stay their ruling in Rainey v. Bostic, the Virginia marriage case, I wonder what possessed them to make such a refusal despite the Supreme Court’s two previous rulings granting a stay in similar cases, over the objections of the Tenth Circuit. While we would hope for denial of the requested stay, it is almost automatic in such cases, especially where one has already been granted. It says little, if anything about the merits of the case or the chance of success. So why is the Fourth Circuit seemingly asking to be overturned–judges do not like that.

My own thoughts have been that they wanted to dare the Supreme Court to overrule them with the strong likelihood that the case will be resolved in favor of marriage equality in the very near future, and the stay will have been exposed as unnecessary. Of course, I could be guilty of wishful thinking, but over thirty federal judges, including four circuit court judges agree with me.

A friend, who knows well people who clerked for the judges in this case, offered a slightly different perspective, which I adopt. She said that the “cranky old men” on the Fourth Circuit could be expressing their annoyance with the Justices, for erring in Windsor and making the lives of the circuit court judges needlessly difficult. The error, let me hasten to explain, was not that the Supreme Court decided the case wrongly, but that it did not go far enough.

Before the decision in Windsor came down, I hoped that the court would recognize the chaos that would ensue if they ruled as they eventually did, leaving the larger question of the constitutional right to marry the person of your choice for another day. Obviously this decision led to the many cases claiming the right to marry and to have one’s marriage recognized, but it led to many other subsidiary issues that have surely plagued the court system since then. My imagined example was of a couple who worked, at least one of them, for the federal government in Washington, and could have their employment benefits changed by moving from one block to another (from one state to another). That would lead to unequal treatment of two federal employees, similarly situated, and sitting next to each other at work. There would also be the case of a federal employee assigned from a state that recognized her marriage to one that did not. We know that groups such as Lambda Legal have specialists who advise people on how to navigate this mess. Since I do not spend my time worrying about the difficult lives of federal judges, I did not consider that they might well feel aggrieved in their own right.

And so it seems that they may have done; and sent a message to the Supreme Court, by refusing to stay their decision, thus allowing our friends to marry, but at the same time, allowing them to dismiss pending cases as moot.

Speaker of the House, Brian Bosma and Senate President, David Long have announced that the marriage discrimination amendment (HJR 6) will not be heard, nor acted upon, this year. They pointed out that the U.S. Supreme Court will rule this spring on the issue of marriage equality and that it would be embarrassing for Indiana to have a ballot initiative on an amendment that had already been declared repugnant to the United States Constitution. If the two houses pass HJR 6 before the next election, there is no way to keep it off the ballot in November 2014, so they, and we, will await the pleasure of the court.

There is little doubt that the Supreme Court will find, one way or another, that Proposition 8 in California is unconstitutional and that the right to marry the person of your choice there must be respected. But there are several ways that their decision could be limited to California or to some states in the Ninth Circuit. Similarly there is little doubt that the court will find that the United States government must respect legal marriages from any state and treat citizens accordingly. But it is less clear that they must extend marriage equality to all the states, based on the cases in front of them.

There is a principle of judicial review, which I remember from my childhood, but which seems in recent years to have been honored more in the breach than in the observance, which enjoins the courts to draw the narrowest possible scope to their decisions. Recently I saw it cited by the United States Court of Appeals for the District of Columbia: “It is a well-settled principle of constitutional adjudication that courts ‘will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.'” In this case that means that if they can come to the right decision, or outcome, in the cases before them, which involve specific wrongs to specific people (and other similarly situated), then they should not take the opportunity to make sweeping pronouncements about other aspects of the laws before them, or other laws. To do that, by the way, would be judicial activism; not the act declaring an unconstitutional law invalid, which is their job, but the act of making judgments that are not necessary to rendering justice in the case in front of them, even if I wish they would do so.

When I was young, lawyers went mad trying to find the perfect case where the only way the court could decide would force the constitutional precedent they desired. They had to find a case where the only issue was the constitutional one. For example, this fall the court asked the lawyers in the Proposition 8 case to brief them about the question of whether the appellants had standing to appeal. If they did not, there was no valid appeal, even to the court of appeal; the original judgement would stand, and apply only to California. The court may have had other reasons to make that request, so it would be wrong to read too much in to it but that is one outcome that would do justice in the lawsuit filed in California, but would have absolutely no effect elsewhere. That is one reason why it is sometimes beneficial for the government to appeal a judgement even when it agrees with it. If there is a valid appeal to the Supreme Court, their judgement becomes the law of the land. If there is no appeal, the judgement is merely local precedent and useful in argument.

As I wrote above, it is no my sense that the court has been nearly so persnickety of late, so you might think, or hope, that they would decide these cases with a broad brush and declare any such limit on the fundamental right to marry the person of your choice, and be treated equally when you do so, unconstitutional. ‘Tis a consummation devoutly to be wished. But this court has signaled a sensitivity to public opinion, to political pressure, and a reluctance to make robust decisions. It is equally erroneous for a court to show too much deference to the legislator, nullifying the will of the people expressed in the constitution, expressly to constrain that legislator, as to overreach by making pronouncements that are not justified, not compelled, by the case in front of them.

So we will wait for the spring to find out if, for the nonce, spouses of federal employees will get benefits and people in California can marry irrespective of invidious classifications but the rest of us are untouched or if the struggle for marriage equality and with it the core of this chapter in the struggle for equal rights is over in this country. The legal issues in the cases before the court seem clear, but the question of scope and how the court will navigate the issues before it and pressures upon it are murky.

I had planned to write on how the decision of the House and the Senate will affect our lives in Indiana for the next year and more immediately for the next couple of months.This post is long enough and I will recur to my intention soon.