an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
As readers know, I'm skepticalwhether the Gill and Massachusetts v. HHS cases will be upheld on appeal, and I think that losing in front of the First Circuit or the Supreme Court will be a setback for marriage equality. I think that the fight for marriage equality has to happen in the individual states, and that it is premature to try to win big victories in the federal courts. But as Andy Koppelman has pointed out the litigators in Gill are very smart, and they thought it was worth the gamble to try this case in federal court. So in this post, let me view things from their perspective and consider a set of scenarios in which things turn out better than I expect, and that would ultimately vindicate the plaintiffs' litigation strategy. Scenario 1. The government does not appeal Gill and Massachusetts v. HHS. As a result, Massachusetts same-sex married couples get federal benefits. This is a good result. It does not help same sex married couples in any other jurisdiction; they will have to initiate their own litigation in federal district court to overturn section 3 of DOMA, hope they also win, and hope that the government also decides not to appeal. But at least this result helps couples in Massachusetts. On the other hand, failing to appeal leaves in place the terrible reasoning about the Tenth Amendment in Massachusetts v. HHS. This may come back to haunt the Administration someday, and it will be cited by judges in other jurisdictions around the country to strike down other federal laws.
Might the Obama Administration simply decide not to appeal Judge Tauro's decision? It would leave the Tenth Amendment language standing, which might cause problems later on. Perhaps equally important, it would be politically dangerous for the Administration not to appeal, because it would look as if the Administration was secretly supporting same-sex marriage and deliberately threw the case, or at least, this is how it would be portrayed in the press and by Republicans. Moreover, the 2010 elections are coming up soon, and the Democrats are already weakened by the economy. If the Administration doesn't appeal, the Republicans will make it a campaign issue.
Scenario 2. The government appeals Gill and Massachusetts v. HHS. The plaintiffs lose in the First Circuit, and the Supreme Court denies cert. This is a bad result but not the end of the world, because it only makes bad law in one Circuit. It puts marriage equality advocates where they were before the litigation: trying to change things state by state and then getting Congress to repeal DOMA after enough states change their laws (See also scenario 6). (I assume that the Supreme Court will deny cert because the plaintiffs lose. If they accept cert, this leads to scenarios 5 and 6, discussed below.).
Scenario 3. The government appeals Gill and Massachusetts v. HHS. The plaintiffs win in the First Circuit on the equal protection theory but not the Tenth Amendment theory (which will almost certainly go nowhere on appeal), and the government decides not to appeal. This is an even better result than scenario 1. It gets rid of the Tenth Amendment result, and it benefits couples in the states in the First Circuit (which includes several New England states and Puerto Rico) that either currently recognize or eventually recognize same-sex marriage. (This would immediately help couples in New Hampshire and Massachusetts. Connecticut and Vermont, however, are in the Second Circuit, and Iowa is in the Eighth.) However, if the Obama Administration fails to appeal a win in the First Circuit, it would probably be even more heavily criticized for throwing the case (having gone this far, why not appeal to the Supreme Court?), and the decision not to appeal would probably occur in the run up to the 2012 election. I do not regard this scenario as very likely.
Scenario 4. Same as 3, except that the government seeks certiorari in the Supreme Court, and the Supreme Court denies certiorari. This would be an even better result than scenario 3. The only potential downside is that having section 3 of DOMA unenforceable in part of the country would would probably spur considerable political backlash against marriage rights at least in the short run.
Would the Supreme Court be likely to deny certiorari if the First Circuit struck down DOMA? Perhaps the Justices will wait for another circuit to speak on the matter, and see if there is a split in the circuit. On the other hand, it only takes four Justices to grant cert. And this would be a very high profile case. Taking this case would be red meat for conservatives and continue to place the Obama Administration in a very awkward position in one of the most high-profile cases in recent memory.
Moreover, the four most conservative Justices (Scalia, Thomas, Roberts and Alito) might be eager to vote for cert to reverse the First Circuit because they think that they have a pretty good shot at getting Kennedy's vote. They might think that because it's fairly hard to write an opinion that strikes down section 3 of DOMA but leaves state marriage laws standing. It can be done, but as the exchange between Andy and myself suggests, it's not easy. If Kennedy doesn't want to commit himself to holding that the Constitution requires same-sex marriage everywhere in the United States, he may not be a fifth vote to strike down DOMA.
The elephant in the room, of course, is the Perry v. Schwarzenegger case in federal district court in California, which makes a direct assault on state marriage laws. If both these cases make their way to the Supreme Court about the same time, or if Perry v. Schwarzenegger gets there first, then it will be even more difficult to separate the constitutionality of section 3 of DOMA from the constitutionality of state marriage laws generally. And of course, if Perry v. Schwarzenegger strikes down Prop 8, and is affirmed by the Ninth Circuit the chances become very high that the Court will take cert in that case, even if it does not take cert in Gill.
Scenario 5. same as 4, except that the Supreme Court takes the case and holds for the plaintiffs on the equal protection theory but not the Tenth Amendment theory. This is of course, what the lawyers for the plaintiffs are basically trying to achieve. I think that the odds are not very high, for reasons I've described elsewhere, and that is why I've been wary of Judge Tauro's opinion, but there is no doubt that this would be a big win. It would also likely spark an equally big political backlash, and very different from what happened after Lawrence v. Texas. (Once again, whatever happens in Perry v. Schwarzenegger might throw additional gasoline on the flames.).
Lawrence struck down state sodomy laws when only 13 states still had them and they were almost never enforced. That is why conservatives did not make a big issue of Lawrence when it came down and almost immediately shifted to the issue of same-sex marriage. Striking down DOMA when only five states and the District of Columbia recognize same-sex marriage would generate much greater opposition to the Supreme Court and give Republicans a far more powerful cultural issue to run on. (And don't forget the additional effect of Perry v. Schwarzenegger.)
Scenario 6. same as 5, except the Supreme Court reverses the First Circuit and holds that section 3 of DOMA is constitutional. This scenario is my major concern, because it has nationwide effects on the fight for marriage equality.
However, let me now argue the opposite side, and explain why even this scenario might ultimately turn out acceptably for the cause of marriage equality in the long run. That is, let me explain why, despite my stated concerns, losing in the Supreme Court ultimately won't matter much fifteen to twenty years from now.
The argument is that losing in the Supreme Court forces the fight for marriage equality back to where it should be, in my view: to the individual states legislatures to get them pass new marriage laws, to state litigation to get state courts to recognize same-sex marriage, and to Congress to repeal DOMA.
Now in the case of marriage equality, I predict that lots of states will have to act before Congress does. Put differently, I believe that a critical mass of states will have to recognize same sex marriage before Congress repeals either section 2 or section 3 of DOMA. That is because same-sex marriage is currently unpopular in many places, so many Congressmen and Senators see no advantage in voting to repeal DOMA. They would rather kick things down the road for a while longer. There has to be pressure from constituents from many states to get reform at the national level (and you have to get 60 votes in the Senate!). Only if a lot of constituents from a lot of states start arguing that they are getting badly treated by denial of federal benefits will enough Congressmen and Senators have the political will to repeal DOMA's provisions. That is unlikely to happen soon.
Now if the number of jurisdictions recognizing same sex marriage went from six to twenty-six in the course of a decade, the political climate would change significantly, and it would be easier both to get DOMA repealed in Congress and to win some cases in federal court. Of course, it would be even easier if there weren't a major Supreme Court decision standing in the way. But, then, in fifteen years, who knows who will be on the Court? It may be much more gay friendly than the current Court. For one thing, the newer Justices will be younger than the present ones, and so the chances that they will support marriage equality is slightly higher. (Of course that would not be true of if Obama fails miserably, and produces decades of conservative politics dominated by a revitalized right wing of the Republican Party, which load the federal courts with very conservative judges who don't believe in gay rights.)
So here is the potential silver lining to the cloud: If the plaintiffs lose in the Supreme Court, advocates of marriage equality will pretty much be where they are now: forced to do the long, hard work of boosting the number of states that recognize same-sex marriage. And that is also, in my opinion, the way to win in the long run.
You could even argue, by analogy to Bowers v. Hardwick, that losing now will have additional beneficial effects in politics. The argument is that losing Bowers v. Hardwick in 1986 energized the gay rights movement to push harder to win a series of victories in the individual states. Of course, there is one difference from what happened after Bowers: In Bowers, about half the states already had decriminalized same-sex sodomy. Here only five states and the District of Columbia have recognized same-sex marriage. This is, as I have noted before, like losing Bowers in 1972. It's not clear that losing Bowers in 1972 gives the gay rights movement as much momentum as losing in 1986, when public opinion was starting to turn decisively toward the rights of gays.
Even so, the purpose of this post has been to look at the glass as half full rather than half empty. So let me summarize the possible rosy scenarios: If the government doesn't appeal, the plaintiffs win. If the government appeals, maybe the plaintiffs will win. And even if the government appeals and plaintiffs lose, advocates of marriage equality will be pretty much where they are now: fighting for marriage equality in the states, so that eventually marriage equality will come to the entire country sometime down the road. Posted
by JB [link]