Will John Roberts find a constitutional right to equal marriage?

John Roberts, Chief Justice of the United States (from Wikipedia)

Chief Justice John Roberts is usually a reliable vote among the conservatives on the nine-member court. Yet in NFIB v Sibelius (2012), he voted with the four liberals to find that the Affordable Care Act (ACA) was constitutional. He did so on narrower grounds than the four liberals, relying on the taxation power rather than the commerce clause. It is widely accepted that Roberts had originally intended to strike down the law, but changed his mind in the month beforehand, based in part on the political calculus that it would damage the Court’s political reputation were it to strike down Barack Obama’s key legislative achievement. It would have appeared too partisan for the five justices appointed by Republican presidents to vote to strike it down, with the four appointed by Democratic presidents to vote to uphold it, and affected the court’s reputation as a neutral umpire calling ball and strikes.

The ACA is back before the court this term, in King v Burwell, not on the validity of the law, but its application. But if Roberts did not hinder it in 2012, he is unlikely to do so now after so many have already taken advantage of it. And in this case, he has cover from Anthony Kennedy, who voted against the ACA in NFIB, seems likely to uphold its application in this case.

The blockbuster case of this term is Obergefell v Hodges and its related cases, which will be heard this Tuesday, and is likely to settle the question of equal marriage for gay couples in the United States. The court themselves admit the difference between it and other cases this term with a link to briefs for the case on their home page, and agreeing to release the audio recording of oral argument on Tuesday, rather than waiting till the end of the week as standard.

There’s no reason to expect that any of the five justices who struck down the Defense of Marriage Act in United States v Windsor (2013) will not apply similar reasoning to state bans on same-sex marriage. But Roberts was in the minority in Windsor. Why would he vote to strike down these bans at a state level if he would not do that to the federal legislation two years ago?

John Roberts was appointed as Chief Justice in 2005 at the age of 50. Four of the associate justices are aged between 76 and 82. We should expect that Roberts will remain leading the court till at least 2030. Roberts is politically astute enough to know that this case will be regarded as a landmark. Will he want to risk the opprobrium of legal analysts in a decade’s time appearing before him wondering how he could have got it so wrong? It’s easier for Antonin Scalia, not being in the pole position of Chief Justice, or indeed Samuel Alito, who like Roberts was appointed in 2005 by George W. Bush.

Scalia and Alito both gave lengthy dissents in Windsor, with which Clarence Thomas joined. Roberts, by contrast, wrote a succinct dissent, of a mere three pages. He joined Scalia only on the jurisdictional matter, finding that the court should not have decided the case at all, as the United States government was not contesting Edie Windsor’s claim. Roberts’ short dissent justified the Defense of Marriage Act on the basis of uniformity of marriage rules, rather than the blistering terms of Scalia’s dissent defending the enforcement of traditional moral and sexual norms.

Might Roberts wish to deprive Kennedy the pleasure of his place in history of completing a series of judgments in favour of constitutional protection to gay people. From Romer v Evans (1996), to Lawrence v Texas (2003), to United States v Windsor (2013), Anthony Kennedy wrote all of the case law progressing gay equality. Eric Segall recently wrote about the rivalry between Roberts and Kennedy for perceived control of the court.

The author who writes opinion of the court is assigned by the most senior justice in the majority. If the majority is the same five as in Windsor, that would be Anthony Kennedy, who will surely assign it to himself. But if Roberts were to join the majority as the sixth vote in favour of requiring all states to license a marriage between two people of the same sex, he could then choose to assign the opinion to himself.

So, both because he should be able to project the landmark status of the decision, and because of rivalry with the other moderate conservative voice, don’t be surprised if Roberts strikes down the bans. But aside from the politics of it, there’s nothing in any of his other votes on social reform cases to suggest that he will do so!

Of course Justice Kennedy will vote for equal marriage

So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.

There will be two questions before the Supreme Court:

1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.

Anthony Kennedy, Associate Justice of the United States Supreme Court since 1988.

Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).

The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further?

Why marriage might return to the US Supreme Court and why this time it’s different

The new term of the US Supreme Court begins today, and their docket for this term will begin to fill up. The nine members of the court decide themselves which cases to hear, of the many appeals from lower court decisions across the country. Among they many they could choose this term are a number of defences to state bans on either the recognition or performance of marriage between couples of the same sex. This would lead to a decision affecting all US states by June 2015. It is not long since the Supreme Court last considered cases relating to marriage, when they ruled on United States v Windsor in 2013, leading the federal recognition of marriages between same-sex couples as performed by these states. Why makes these cases different?

A lot of the commentary in June 2013 spoke of the compromise the court reached, in striking down the ban on federal recognition in Section 3 of the Defense of Marriage Act (DOMA), while declining to consider the implications of the other case before it beyond California. This is a simplistic view of that case. This second case that year was Hollingsworth v Perry, a case which originated as Perry v Schwarzenegger, the culmination of a challenge to Proposition 8, the 2008 ballot initiative which had added to the California constitution the clause, “Only marriage between a man and a woman is valid or recognized in California”. In August 2010, US District Court Judge Vaughn Walker became the first of many federal judges to find a ban on same-sex marriage to contravene the US constitution. The state of California accepted the court’s ruling, and the appeal was taken up by those who had campaigned for Proposition 8. The Supreme Court that they did not have standing to do so, i.e. they did not have a direct stake in the outcome. It remained a matter for an organ of the state to defend a state law. Rather than being a formula drafted to dodge addressing a hot-button issue too soon, it would have been more questionable had they decided to consider the case. In 1996, the court came to a similar conclusion in Arizonans for Official English v Arizona, and the court should adhere to its precedents unless there are clear and compelling reasons to revisit a previous ruling.

Windsor ruled on Section 3 of DOMA, as this was the only question before it in that case. Writing the opinion of the court, Justice Anthony Kennedy held in clear and eloquent terms that the provision was unconstitutional. He wrote with an understanding of the change in attitudes we are witnessing, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage … Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community”. After acknowledging the many harms of such a ban on recognition, including to the children of same-sex couples, Kennedy concluded “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”

While Justice Kennedy did spend a considerable portion of the opinion defending the right of the states against the federal government in relation to marriage, this was in support of New York in including same-sex couples. Citing Loving v. Virginia (the 1967 case which ended state bans on interracial marriage), he wrote “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons”.

Following this judgment, many cases proceeded in federal district courts challenging state bans. The first judgment was in December 2013 in Utah, where Judge Robert Shelby cited not only the opinion of Kennedy in Windsor, but also the dissenting opinion of Justice Antonin Scalia, who predicted that it would be a very small step from striking down the federal provisions in DOMA to striking down the bans in the states. Ten other district court judges came to the same conclusion when considering state bans across the country, ruling each of them unconstitutional; in September, Judge Martin Feldman in Louisiana became the first to write a court opinion upholding such a ban.

While some of these decisions applied with brief effect, most of them were stayed pending further appeal, so marriage has not been extended in these states (Pennsylvania being an exception, where the state accepted the opinion of the district court).

The Circuit Court Appeals have issued opinions in the Tenth Circuit (cases from Utah and Oklahoma), in the Fourth Circuit (from Virginia), and in the Seventh Circuit (cases from Wisconsin and Indiana), and in all cases upholding decisions that state bans are unconstitutional. Crucially, in all these cases, officials from the state are defending the ban, distinguishing them from the situation in California.

The Supreme Court may now decide to take any one or all of these cases. If they choose not to hear those cases this term, then the circuit court decisions will stand, and marriage will be extended in those states, and nearly immediately in other states in those districts. However, the supreme court may wish to wait until there is a circuit split, i.e. when there are conflicting interpretations of the constitution from different circuit courts. It remains possible that appeals in other circuits will find in favour of the constitutionality of state bans; this seems quite likely to be the outcome in the Sixth Circuit, where Judge Jeffrey Sutton was quite skeptical of the merits of the constitutional case for equal marriage at oral argument in cases from Michigan, Kentucky, Tennessee and Ohio. If this occurs, it is almost certain that they will be heard this year.

While those of us following the developments will wait eagerly to hear from the court today, I wouldn’t be holding my breath. In 2013, I tuned in on a weekly basis to whether they would take the Perry case, and which DOMA case they would consider; it was not until 7 December that this information was revealed.

Which still means that before Christmas, we should expect to know of a date in the spring when the Supreme Court will hear cases relating to the constitutionality of bans across the whole United States, with an opinion in June. I will of course return to this, to outline in clear terms why I believe they both should and will find that there is a constitutional right for couples of the same sex to marry, throughout the United States.

US to recognise gay marriage in 13 states at a federal level

With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.

This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.

In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.

This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.

So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.

I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?

We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.

Could there be equal marriage across the United States this year?

It depends on two cases the Supreme Court is hearing this week, and will probably rule on late in June. On Tuesday, they will hear Hollingsworth v. Perry, and on Wednesday they will hear United States v. Windsor.

Windsor and DOMA

Edie Windsor is challenging the Defense of Marriage Act (DOMA), specifically Section 3 which reads,

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

This was passed by the House by 342 to 67, by the Senate by 85 to 14 and was signed into law by President Bill Clinton on 21 September, 1996.

The law was drafted by Georgia Republican Congressman Bob Barr in response to a ruling of the Supreme Court of Hawaii striking down a prohibition on same-sex marriage, based on the equality provisions of the Hawaii state constitution (subsequently overturned by Hawaiian voters). DOMA allowed states to provide for same-sex marriage, but this would not recognised by either the other states or by the federal government. This was several years before Massachusetts became the first state to permanently allow same-sex couples to marry in 2004.

Edith Windsor and Thea Spyer, both residents of New York, were engaged in 1965, and finally married in 2007 in Toronto, Canada. Spyer died in 2009, leaving her estate to her wife. This was before New York performed same-sex marriages, but they recognised marriages performed elsewhere. However, Windsor received a federal estate tax bill of $363,000 because the federal government did not recognise their marriage. As Windsor put it, ‘If Thea was Theo, I would not have to pay those taxes’.

With attorney Roberta Kaplan, Windsor filed in the federal courts. In February 2011, US Attorney-General Eric Holder announced that his department would not defend the law. Paul Clement, who served as Solicitor-General for Bush 2004–08, sought to defend it on behalf of the Republican-dominated Bipartisan Legal Advisory Group (BLAG), and Holder agreed to facilitate this.

In June 2012, Judge Barbara Jones of the United States District Court for the Southern District of New York ruled in favour of Edie Windsor. She based this on the equal protection clause of the Fifth Amendment,

No person shall … be deprived of life, liberty, or property, without due process of law.

Judge Jones further noted that DOMA could not pass even the standard of review of having a rational basis, the most basic standard of scrutiny.

The government lodged an appeal, again to facilitate the defence from the BLAG, which was upheld by the United States Court of Appeals for the Second Circuit in October 2012. This was again appealed, and the United State Supreme Court agreed to hear it. There were many briefs filed on both sides, included one in favour of ruling DOMA unconstitutional by the US government. It will be heard this Wednesday.

Hollingsworth v. Perry

Two couples, Kristin Perry and Sandy Stier, Paul Katami and Jeff Zarrillo, are challenging Proposition 8, an amendment to the California Constitution, passed in November 2008 with 52% in favour, which added a new Section 7.5,

Only marriage between a man and a woman is valid or recognized in California.

The Proposition was proposed after the California Supreme Court ruled in May 2008 in favour of allowing same-sex couples to marry.

In May 2009, the American Foundation for Equal Rights filed in the federal courts against Proposition 8, representing two couples. Among the attorneys for the four plaintiffs, were two who faced off against each other in Bush v. Gore, the Supreme Court case that halted the recount of the Florida votes, and so confirmed the 2000 election for George W. Bush. Ted Olson had represented Bush, while David Boies had represented Al Gore. Ted Olson later served as Solicitor-General for Bush 2001–04, preceding Clement mentioned above.

Then California Attorney-General, Jerry Brown, declined to defend, as he believed the case that it was unconstitutional. Then Governor Arnold Schwarzenegger lodged a defence, though he did not participate, and the case preceded as Perry v. Schwarzenegger. The court recognised Dennis Hollingsworth of Protect Marriage, a proponent of Prop 8, as the defence.

The combination of an outstanding legal team on behalf of the plaintiffs, and a very weak defence, has made the transcript of the hearing legendary among advocates for equal marriage, and highlights were reconstructed by screenwriter Dustin Lance Black:

In August 2010, Judge Vaughn Walker ruled for the United States District Court for the Northern District of California, giving a sweeping judgment in favour of the plaintiffs, ruling Proposition 8 unconstitutional. He found a constitutional right of gay couples to marry, citing both the due process and equal protection clauses of the Fourteenth Amendment,

No State … deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

He also ruled that gay men and lesbians should be acknowledged as class of minority which merit a strict scrutiny in review of laws, and listed eighty findings of fact to assert his case.

This ruling was appealed, and in February 2012, the United States Court of Appeals for the Ninth Circuit upheld the unconstitutionality of Proposition 8, but on narrower grounds. Judge Reinhardt appealed on due process grounds to the manner in which the right to marry was removed from gay couples in California without a valid reason, rather than on whether a fundamental right to marry had been infringed.

Dennis Hollingsworth proceeded to appeal this ruling, and there were similarly many briefs on both sides, which drew more attention than those in Windsor, as the dealt with the more fundamental question of constitutionality of bans on gay couples marrying. The US government filed a brief in favour of ruling Prop 8 unconstitutional. It will be heard on Tuesday.

What should we expect?

Very few commentators expect that the rulings will not shift the balance of rights of gay couples in favour of equal marriage. The question is a matter of degree. Specifically on a repeal of Section 3 of DOMA, it is widely expected that Edie Windsor will be successful and that the US Federal Government will then recognise marriage between same-sex couples. This would not have an effect in the 41 states which do not currently perform same-sex marriages, but couples living in those states could marry elsewhere, and their marriages would e recognised at a state level.

The big question then is how far should be expect the court to rule of Proposition 8. Very few expect them to overturn both lower court rulings and find that Prop 8 was in fact constitutional. The extent of a favourable ruling could vary:

• they could rule that Dennis Hollingsworth does not have legal standing to appeal the case. This would deny his right to appeal the case, and leave the District Court ruling intact in California, but would have no effect outside of the state. Michael McConnell. In Diamond v. Charles, the Supreme Court ruled that an anti-abortion doctor did not have the right to defend his state’s law when the attorney-general declined to do so. Also, in 1998, the Supreme Court ruled in Arizonans for Official English v. Arizona that the supporters of a ballot imitative did not have standing to appeal.
• they could adopt the ruling of the Ninth Circuit and rule Prop 8 unconstitutional because it removed a right which gay couples had. This would have no immediate effect outside of California, though it would mean that a ballot imitative to forbid same-sex marriage in any of the nine states which allow it would be unconstitutional.
• they could adopt the reasoning of the brief filed by the US government (and so the official stance of the Obama administration as of February), that states may not be permitted to draw an artificial distinction between opposite-sex and same-sex couples through an institution as domestic partnership, as there could be no claim of a rational basis for denying marriage in those circumstances. This would also introduce equal marriage in Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.
• using the same case as Judge Walker in the District Court, they could find a constitutional right to marry for gay and lesbian couples, which would result in equal marriage in all fifty states.

Let’s hope for the last of these. It would end the debate once and for all. It is moving in one direction. Some of the older more conservative gay activists, such as Andrew Sullivan and Jonathan Rauch have stated a preference for a narrow ruling, fearing a backlash, and claiming that this is a better to win by convincing the hearts and minds of voters and legislatures, state by state, rather than a sweeping judgment now. That is very easy to say for them, both of them married, in Massachusetts and DC respectively. A sweeping ruling this year would remove it from the political sphere. There will be a backlash in some places, but one that die away sooner that one might think, and with better consequences for the gay people of Mississippi than waiting till 2024, as Nate Silver predicted they would have to (albeit on a projection that was a few years out of date). It will move on, much more than the judgment in Roe v. Wade on abortion was accepted.

Ultimately, I think they should rule in favour because I think it is a constitutional matter. Not one that might have been perceived till recently, but that was in the very nature of the Fourteenth Amendment even as it was drafted in 1866, that inequality as yet unperceived would be ruled against.

And I am hopeful. I don’t necessarily agree with Emily Bazelon, who worried about the Court taking this case, as this is not 1986 as far as visibility for gay people goes. The focus is on Justice Anthony Kennedy, who wrote the court’s opinion in both Romer v. Evans in 1996, which overturned a ballot initiative in Colorado declaring that gay and lesbians could not be protected by any city or county in the state, and Lawrence v. Texas in 2003, which overturned the anti-sodomy laws of 14 states. Both of these were 6–3 decisions. Kennedy is not a progressive justice; he has supported restrictions on abortion, wrote the decision in Citizens United and voted in the minority to overturn the Affordable Care Act. Yet he has good form on gay rights.

Two of those who voted against both Romer and Lawrence, Antonin Scalia and Clarence Thomas, are still on the court can be counted straightaway as votes to uphold Prop 8 and DOMA (the most David Boies would consider in a recent interview was 7–2). Four Justices are likely to go at least as far as Kennedy, two appointed by Clinton, Justice Stephen Breyer and Justice Ruth Bader Ginsburg, and two appointed by Obama, Justice Sonia Sotomayor and Justice Elena Kagan. That leaves the two appointed by Bush, Chief Justice John Roberts and Justice Samuel Alito.

I would not be surprised to see Roberts vote with the majority to strike down DOMA. He is very mindful of the long-term standing of the Court, and this may at least subconsciously play into his decision. In his early practice, he was involved in preparing the gay rights side in Romer. I have no reason to make such a call on Alito.

On a side note, a wily Republican strategist should quietly hope for a sweeping judgment. This would remove the question from the next electoral cycle, and mean that the 2016 candidates will be able to avoid it at a time when the electorate in general is moving towards accepting equal marriage at a far faster pace than their Republican primary base. They could give some response like, ‘It wasn’t the approach I had supported, but I accept the decision of the courts. What matters now is working with all those who wish to strengthen the institution of marriage in society’.

A sweeping judgment would also be the only one that would really have much effect from the international perspective. And it would have an effect on the debate here in Ireland, enhancing the case for equal marriage as a clear shift among those countries we have most in common with, if added to Britain and France this year too, and the eight other European countries that currently allow gay and lesbian couples to marry.