Friday, July 26, 2013

Teaching Materials for the Marriage Cases


[These are the discussion notes for the Marriage Cases, United States v. Windsor and Hollingsworth v. Perry. A version of these notes will appear in the 2013 Supplement to Brest, Levinson, Balkin, Amar and Siegel, Processes of Constitutional Decisionmaking (5th edition).]

[United States v. Windsor]


1. Faux federalism? Justice Kennedy's opinion begins by invoking federalism principles but then veers off and notes that “[t]he State's power in defining the marital relation is of central relevance in this case quite apart from principles of federalism.”  What role does the state—and the balance between the states and the federal government—play in the majority opinion? Kennedy suggests that “the State's decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. . .  [and] enhanced the recognition, dignity, and protection of the class in their own community.”  The federal government then demeaned (or sought to harm) that relationship by refusing to recognize it when the state does. Does this mean that same-sex relationships would lack either sufficient dignity or sufficient constitutional protection if states had not recognized them?

2. Mind reading. Kennedy treats the case as falling within the rule that “‘a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”  How does Kennedy know that DOMA was based on a bare desire to harm a politically unpopular group? Is moral disapproval of homosexuality the same thing as a bare desire to harm homosexuals?  Could somebody vote for DOMA in 1996 without animus against homosexuals?

Is Kennedy's argument a claim about the actual psychology of members of Congress, as well as President Clinton, who signed the bill? Or is it a judgment about the social meaning of DOMA? (Compare the previous discussion of Plessy v. Ferguson and Brown v. Board of Education.) Note that some liberal Democrats in Congress, and probably President Clinton himself, may have voted for the bill not because they had any animus against homosexuals, but because they feared that if they opposed DOMA, they would create an excellent wedge issue for Republicans in the 1996 election. How, if at all, should this affect Kennedy's analysis?

3. Playing it safe. Couldn't one argue, akin to Justice Alito, that Congress might simply have sought to protect an existing institution from an innovation that, in 1996, seemed particularly radical and dangerous and might have uncertain consequences? Is Kennedy's argument that the meaning of DOMA was demeaning in 1996 or that it is demeaning today?  What if the social meaning changes yet again? What if there is no consensus in different parts of the country about the social meaning of opposition to same-sex marriage? Why doesn't Alito's argument that Congress wants to wait and see what develops provide an adequate rational basis for DOMA? Is it because the majority does not believe that this is the real basis for DOMA? If so, that would suggest that, whatever the opinion says, the Court is applying some form of heightened scrutiny.

4. Standard of review? The Court seems to base its decision on the rational basis test—supplemented by Moreno and Romer v. Evans—and does not take up the question whether classifications based on sexual orientation are subject to heightened scrutiny. Should it have? Heightened scrutiny for such classifications is now the official position of the Obama Justice Department.  Is Windsor simply an extension of the principle of Romer v. Evans? Or is it better understood as a deferral of the question, like Reed v. Reed in the area of gender discrimination?  Note, however, that within five years of Reed, the Court had settled on intermediate scrutiny for sex classifications.  It has now been seventeen years since the Court broached the issue of sexual orientation and equal protection in Romer.

5. Class legislation. Windsor does not fit well into existing doctrinal categories.  However, it does make sense as exemplifying the principles against class and caste legislation. These were among the original purposes of the Fourteenth Amendment's Due Process and Equal Protection Clauses, and the Reconstruction Framers assumed these principles also applied to the Due Process Clause of the Fifth Amendment.

6. Dignity. Kennedy’s opinion repeatedly speaks of liberty. Sometimes he seems to mean that a guarantee of equal protection is contained within the Fifth Amendment’s guarantee of liberty with due process.  At other times he seems to speak of the liberty protected by the Fifth Amendment as more than simply a guarantee of equal protection. Thus, another possibility is that the Court has abandoned the tiered standards of review--as evidenced by Casey, Romer, and Lawrence--and will simply proceed on a case-by-case basis, relying on the unifying concept of dignity, which straddles liberty and equality concerns.

One reason for this development is that Justice Kennedy, the swing vote in all of these cases, prefers talking in these terms. If Kennedy is no longer the swing vote because of new appointments, however, the doctrine might evolve accordingly.  How would you articulate the constitutional doctrine of dignity in Casey, Romer, Lawrence, and Windsor?  Do these cases produce an easy to understand test of when dignity has been violated or undermined?

7. Waiting for the other shoe to drop. Justice Scalia mocks Justice Kennedy's federalism discussion, arguing that there is plenty of language in Windsor that a future Court could use to require a state to recognize same-sex marriage. (In his dissent in Lawrence v. Texas in 2003, Scalia made a similar claim that the majority's reasoning would inevitably lead to constitutional recognition of same-sex marriage.). Chief Justice Roberts, by contrast, emphasizes the limited nature of the Court's holding, and argues that Windsor can easily be distinguished from a constitutional attack on state laws denying same-sex couples the right to marry.  Roberts also argues that “it is undeniable that [the Court’s] judgment is based on federalism.” Is this clear? It is possible that we will only know what Windsor means years later, and as a result of new Supreme Court appointments.

8. Super-DOMA and mini-DOMA laws. Until the Supreme Court clarifies its views, the next stage of litigation will concern so-called super DOMA and mini-DOMA laws in the states. Approximately 20 states have “super-DOMA” laws—either statutes or constitutional amendments. These not only prohibit same-sex marriage, but also civil unions, domestic partnerships, reciprocal benefits provisions, and other laws that might give same-sex couples some of the traditional benefits of marriage.  Under super-DOMA laws (which vary by jurisdiction), same-sex couples are generally in the same position as ordinary strangers who, of course, may make contracts with each other, but who may not take advantage of any of the incidents of marriage.  Approximately ten other states have “mini-DOMA” laws, which, in general, simply prevent recognition of same-sex marriage but may allow the state to recognize other forms of partnership or reciprocal benefits that married couples enjoy.

If you were a lower federal court judge, how would you apply Windsor to super-DOMA laws? To mini-DOMA laws?

9. We’re not bigots.  Justices Scalia and Alito emphasize that it is perfectly reasonable to oppose same-sex marriage without being mean-spirited or bigoted, or without seeking to harm or humiliate homosexuals and their children. Why do you think they feel it necessary to make this point?  Justice Scalia argues that the effect of the majority opinion in Windsor is to “adjudg[e] those who oppose [same-sex marriage as]  hostes humani generis, enemies of the human race.” Do you agree?  Did Romer effectively adjudge the voters of the state of Colorado as bigoted?

Compare the current state of the constitutional debate over gay rights and same-sex marriage with the constitutional debate over racial equality and gender equality. What do you think of people who defended Jim Crow and “separate but equal” before Brown and the civil rights revolution; or people who believed, before the 1970s, that the Constitution does not guarantee women equality? Is it fair to view opponents of gay rights in the same way? Is the situation different? Or is this a judgment that can only be made in retrospect?

[Hollingsworth v. Perry]


1. The aftermath. Following the Supreme Court’s decision in Hollingsworth, the 9th Circuit dissolved its stay of the District Court’s injunction against Proposition 8. That injunction extends to state and local officials and “direct[s] the official defendants that all persons under their control or supervision shall not apply or enforce Proposition 8.”  The practical effect is that the state of California will recognize same-sex marriages, although there is still some room for further litigation. The lower court decision was not in the context of a statewide class action, and some state officials may argue that the injunction was overbroad given the relief sought or that it does not otherwise apply to them.

2. Strategy. Note that although the decision is 5-4 the Justices do not line up along a conservative/liberal split. Why do you think this is so?  What strategic considerations might have influenced the various Justices? Note that if the Court struck down Proposition 8 on the merits, it might be difficult to avoid striking down bans on same-sex marriage in other states (although this is still possible if the Court relied on Romer v. Evans and the special political context of Proposition 8.  On the other hand, if the Court upheld Proposition 8 on the merits, it might have to decide that the ban on same-sex marriage did not involve a suspect classification or a fundamental right, thus dealing a serious blow to the gay rights movement.

It takes four Justices to grant certiorari in a case. Which Justices do you think voted to grant cert in Hollingsworth? In Windsor?

3. The reach of Hollingsworth. After Hollingsworth, can California by statute create an office to defend initiatives and referenda in federal court that state officials are unwilling to defend, and would such an officer have Article III standing to defend a law like Proposition 8? If so, then the result in Hollingsworth is one that states can easily work around.  If not, then Hollingsworth reveals important weaknesses in the initiative and referenda system in the states, because of the incentives it creates for state officials opposed to particular acts of popular lawmaking.

4. Direct democracy. Although direct democracy does not appear in the United States Constitution, it is present, in various forms, in 49 of the 50 state constitutions.  Is direct democracy, whether in the form of initiative, referendum, or otherwise, consistent with Article IV’s guarantee of republican government? See Pacific States Telephone & Telegraph Co. v. State Of Oregon, 223 U.S. 118 (1912)(rejecting a challenge to Oregon's adoption of initiative and referendum on the ground that the question of whether a state government is republican is a question for the political branches).  Does the representation-reinforcement theory of Carolene Products have anything to say about judicial review of direct democracy?

Should the federal government adopt elements of direct democracy as a complement to representation by the President and Congress, especially if you think that the current system is increasingly dysfunctional?

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