[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]
Discussion
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]
Discussion
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?