Rumination on Prop8/DOMA Possibilities from the Supreme Court

I’ve been reading lots of speculation about what the Supreme Court might do in Hollingsworth v. Perry (the Proposition 8 case from California) and U.S. v. Windsor (the DOMA Section 3 case from New York). Both cases will be argued late in March. Both present the Court with questions of equal protection of the laws and, added at the instance of the Court, with questions of federal jurisdiction.

Most of the speculation I’ve seen seems to assume that the Court will produce a majority decision in both cases, but I’ve been thinking that the addition of the jurisdictional questions sets up a situation where it is highly possible that there will be no one opinion representing the views of the Court in one or both of these cases.

For example, in Hollingsworth, it is possible that several members of the Court, but not a majority, will agree that Holllingsworth and his colleagues, the official proponents of Proposition 8, do not have standing to appeal the district court’s decision. A straightforward application of Justice Ginsburg’s dicta on standing in the Arizona English case might suggest this outcome, although that view might not win a majority of the Court. Let’s say three or four members of the Court agree on this. Then let’s suppose that the remaining 5 or 6 members are split between those who would affirm either the 9th Circuit or the district court decision on the merits, and those who would reverse one or both on the merits. That would mean no majority opinion, and one would have to think about the permutations and combinations of views, and possible outcomes.

Say, for example, that three justices vote to reverse on the merits, three vote to affirm based on the 9th Circuit’s opinion, and three vote to dismiss the appeal on jurisdictional grounds. In that case, I would argue, Proposition 8 is dead and same-sex marriage is once again available and recognized in California. The result would be a brief per curiam explaining the disposition of votes, and at least three separate opinions – maybe even more than that – to chart the outcome. No national precedent would be set in such a case.

Consider a similar possibility in the DOMA case. From among the many certiorari petitions pending before the Court in cases challenging Section 3 of DOMA, they decided to grant the petition filed by the Solicitor General shortly before the 2nd Circuit ruling on BLAG’s appeal of the district court’s decision in favor of Windsor. This was a petition for certiorari in advance of decision, and, of course, the Solicitor General’s petition did not disagree with the 2nd Circuit’s decision because it hadn’t been issued yet! So it was appealing from a district court decision that held Section 3 violated the 5th Amendment’s equal protection requirement, using a form of rational basis review (not heightened scrutiny). Thus, theoretically, the 2nd Circuit’s subsequent ruling is not the decision from which appeal was taken, and the Court might even ignore it – or at least some members might ignore it, to avoid having to take on the issue of whether sexual orientation discrimination claims merit heightened scrutiny if they could rule in favor of Windsor by affirming the district court’s decision. But the Court added two jurisdictional questions to the case, and appointed a noted Harvard Law School professor, Vicki Jackson, to argue as amicus curiae on these questions.

One is whether the petitioner, the Solicitor General, presented the Court with a real “case or controversy” when, in fact, the petition asks the Court to affirm the result of the district court’s decision. But there is an interesting twist here. The Justice Department’s position has been, generally speaking, that Section 3 survives rational basis review but should be subjected to heightened scrutiny, which it does not survive! So DOJ technically disagrees with the analytical method used by the district court. There’s a controversy! Is it one that the Supreme Court will find sufficient to satisfy its constitutional jurisdictional concerns? And how many Justices wanted to add this question? Does it just take four Justices to add a question to a cert grant, just as it takes just four Justices, under the Court’s procedures, to grant a petition?

The Court also added the question whether BLAG has Article III standing to appeal the district court’s ruling.  I had thought that one reason the Solicitor General filed a petition in this case was to preserve the jurisdiction of the Court over the appeal, since there might be some question of BLAG’s independent standing to appeal the case. BLAG on its own, however, has a rather questionable status. The House of Representatives took no vote to authorize BLAG’s intervention at the time – BLAG is a committee constituted of the Speaker and the top two ranking members from the Democrats and the Republicans, and all of BLAG’s decisions on these DOMA cases have been taken on a 3-2 party line vote. Perhaps in response to concerns about BLAG’s representatives status, one of the first orders of business of the Republican majority in the new Congress, just convened, was to change House rules to designate BLAG as speaking in the name of the House (over protests by the Democrats). Does this retroactively take care of the standing problem? It will be interesting to see what Professor Jackson argues, having been appointed to argue that, among other things, BLAG lacks Article III standing.  Can the House confer standing on BLAG after the cert petition has been granted, and does this change in House rules suffice to allay the concerns of whichever Justices asked to add this question?

But consider what happens if the Court splinters in this case without a majority decision.  Suppose 3 or 4 Justices find that there is no case or controversy on appeal and that BLAG lacks Article III standing, while 3 or 4 Justices would vote to reverse on the merits, finding Section 3 to be constitutional, and one or two (maybe three or four?) are willing to find Section 3  unconstitutional, based on the reasoning of the district court (or perhaps adopting the reasoning of the 1st Circuit in Gill, the case on which they have not yet announced any cert decision)? There would be no majority on the merits, but the combination of the plurality for affirmance of the district court plus the justices who vote to dismiss for lack of jurisdiction would, presumably, result in what?  A district court decision that wasn’t appeal?  A district court decision that was affirmed as to result, de facto?  Does Edie Windsor get her tax refund?  Would it  be binding on the parties, such that the IRS must recognize same-sex marriages? To what extent would it be binding on anybody else?

Would the Obama Administration construe that as sufficient to justify abandoning the enforcement of Section 3? Up to now, their position has been that Section 3 is unconstitutional but they will enforce it unless the Supreme Court strikes it down or Congress repeals it.

Perhaps what is needed is for one of the other DOMA cases to get to a circuit court of appeals, for BLAG to achieve a reversal, and for the LGBT plaintiff group to then file a cert petition? That would get rid of jurisdictional problems.

But in the meantime, where would we be left?

Of course, this is all speculation on my part, and it possible that a majority of the Court will get to the merits and rule one way or the other on either or both of these cases. Because the level of judicial review is crucial to both cases, if a majority of the Court disagrees with the rational basis analyses from the district courts in these cases, that would become the big battleground on the merits.