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
More DOMA Drama: U.S. Government Urges Supreme Court to Choose Second Circuit Case (Windsor v. U.S.) as “Most Appropriate Vehicle” for Resolving Constitutionality of DOMA
The Supreme Court of the United States has before it several petitions seeking its review of the constitutionality of Section 3 of the Defense of Marriage Act, which denies federal economic and other benefits to same-sex couples lawfully married under state law. Court watchers predict that the Court will consider these petitions at a conference next month. But which cert petition will the Court take? On Friday, October 26, the Solicitor General, on behalf of the United States, filed a supplemental brief urging the Court that the case of Windsor v. United States provides the "most appropriate vehicle" for such review. As I wrote last Friday, in Windsor, the Second Circuit became the first federal court of appeals to rule that Section 3 warrants review under the standard of intermediate scrutiny because it classifies based on sexual orientation. It concluded that Section 3 fails such review and affirmed the lower federal court’s ruling in favor of widow Edith Windsor, who argued that she should be entitled to a refund of the $363, 053 she had to pay in federal estate taxes – pursuant to Section 3 – solely because she married a woman, not a man.
The Solicitor General argues that the Second Circuit’s analysis of why intermediate scrutiny is the proper standard of review for classifications based on sexual orientation "may be beneficial" to the Supreme Court’s "consideration of that issue." By contrast, it points out, the First Circuit considered itself "constrained by binding circuit precedent as to the applicable level of scrutiny." Nonetheless, the First Circuit read Supreme Court’s precedents such as Romer v. Evans (1996) as supporting a more "careful" or "intensified" form of rational basis review – something more than the highly deferential approach taken toward economic and social legislation.
Section 3 has now been held unconstitutional by several district courts and by two federal courts of appeals. Thus, no conflict exists between these circuits as to the bottom line that Section 3 violates equal protection and is unconstitutional because it denies federal benefits to same-sex couples – legally married under state law – that it provides to opposite-sex married couples. However, these appellate courts have used different legal standards of review. Each offers a reading of the Supreme Court’s equal protection precedents – as well as the import of Lawrence v. Texas (2003).
Since February 2011, the Obama Administration has argued that, based on its own study of the Supreme Court’s jurisprudence, intermediate scrutiny is the proper standard for reviewing classifications based on sexual orientation and that Section 3 cannot survive such review. Thus, the Solicitor General has argued in the government’s various briefs and cert petitions that: "No court of appeals has offered an explanation for applying rational basis review that withstands scrutiny under this Court’s precedents." For example, to the extent that Bowers v. Hardwick (1986) supported judicial reasoning that homosexuals could hardly warrant status as a quasi-suspect class if it was constitutional to enforce criminal penalties against homosexual conduct, Lawrence, which overruled Bowers, eliminates that rationale. The Solicitor General maintains – as does the Second Circuit – that the Court has never squarely confronted the question of whether sexual orientation is a suspect classification for equal protection purposes. In Romer, the Second Circuit argued, the litigants "had abandoned their quasi-suspect argument after the trial court decision." Thus, the Second Circuit and the Solicitor General both contend that a careful reading of the Court’s jurisprudence supports a conclusion that heightened scrutiny is warranted. (A federal district court in the Ninth Circuit (in Office of Personnel Management v. Golisnki) has agreed, and the Solicitor General has filed a petition for cert before the judgment in that case.).
Several additional reasons that the Solicitor General gives for why Windsor is the most appropriate vehicle for review warrant mention. These concern ways that the Second Circuit opinion answered objections raised by the Bipartisan Legal Advisory Group (BLAG) when Edith Windsor filed her petition for a writ of cert "before judgment" after the federal district court ruled in her favor – but before the Second Circuit ruled. She sought, in light of her age, to get a definitive ruling from the Supreme Court immediately – given the DOJ’s intention to enforce Section 3 until there was a final judicial ruling on its constitutionality. The Solicitor General also petitioned for cert, although it argued that the Court should hold the cert petition in Windsor because other cases provided better vehicles. One reason was due to some of the objections that BLAG raised in its opposition to cert. (BLAG urged the Court that the First Circuit case was the appropriate vehicle for review.)
First, the Solicitor General points out, now that the Second Circuit has ruled, the Court need not grant the petition for cert before judgment, which, BLAG objected, should be "an extremely rare occurrence." Rather, the Court can now consider the original cert petitions and, if it grants them, "review the judgment of the [Second Circuit] court of appeals."
Second, the Second Circuit rejected BLAG’s argument that the U.S. government could not appeal because it was not an "aggrieved party" since it agreed with Edith Windsor that DOMA was unconstitutional. To the contrary, the federal government’s continuing enforcement of DOMA is "why Windsor does not have her money." Further, DOMA’s constitutionality "will have a considerable impact on many operations of the United States." Thus, the Second Circuit concluded, the U.S. is an "aggrieved party" for purposes of taking the appeal, despite the fact that it "may agree with the holding that the statute in question is unconstitutional" (citing INS v. Chadha).
Third, the Second Circuit also dispensed with BLAG’s argument that Edith Windsor’s case was not a good vehicle because it was unclear whether New York would recognize her Canadian marriage. The Solicitor General argues that the Second Circuit – like the district court – reached the conclusion that New York law was sufficiently clear to conclude that such law did recognize her "foreign marriage at the relevant time." Thus, there was no need to certify that question to the New York state court.
Finally, the Second Circuit rejected BLAG’s argument that the Supreme Court’s summary dismissal of the appeal in Baker v. Nelson (1972) controlled Windsor’s equal protection challenge. BLAG has asserted in all the DOMA challenges that Baker controls because, there, the Court summarily dismissed an appeal by a same-sex couple of the Minnesota Supreme court’s decision upholding the constitutionality of Minnesota’s marriage law, as interpreted to limit marriage to persons of the opposite sex. But the Second Circuit concluded that, even putting to the side the limited precedential value of summary dismissals, Baker involved a question – "whether same-sex marriage may be constitutionally restricted by the states" – distinct from the one before it: "whether the federal government may constitutionally define marriage as it does in Section 3 of DOMA." The Second Circuit made a further point, the Solicitor General argues: even if "Baker might have had resonance" when it was decided, "it does not today," in light of the "manifold changes to the Supreme Court’s equal protection jurisprudence" since Baker. (The First Circuit also concluded that, while Baker limited arguments that might be made about any federal constitutional right of same-sex couples to marry, it did not control the issue of the constitutionality of Section 3.)
BLAG’s reply in Windsor is expected soon. Notably, despite the First Circuit’s cautious approach to the Court's guidance about the proper standard of review, BLAG, in its petition for cert in that case, claims that the First Circuit erred by "inventing" and applying to Section 3 "a previously unknown standard of equal protection review." What will BLAG say about the Second Circuit’s approach?
(In light of next week’s national election, perhaps it bears observing that the two Democratic members of the five-member BLAG have declined to join its defense of DOMA. While the Democratic Party Platform supports marriage equality, the Republican Platform fully supports DOMA and a federal marriage amendment. That said, the First and Second Circuit opinions were both authored by judges appointed by Republican president George H.W. Bush.) Posted
by Linda McClain [link]