By Sean C. Sobottka, Esq., Attorney/Principal
Tomorrow at 10 a.m. EST, the Supreme Court of the United States (“SCOTUS”) will deliver two historic decisions for LGBT-civil rights: Hollingsworth v. Perry and Windsor v. United States. These decisions could be decided either on legal technicalities or the substantive matters underlying the cases. Either way and whatever the decisions, tomorrow will be a landmark day for same-sex couples.
HOLLINGSWORTH v. PERRY – The “Prop 8” Case
Hollingsworth v. Perry, or “the Prop 8 Case,” asks if it was constitutional for California voters to pass a ballot measure known as Proposition 8, which amended the California State Constitution to allow only opposite-sex couples to marry. In May 2008, the California Supreme Court found that state legislation limiting marriage to opposite-sex couples violated the California Constitution. This ruling allowed same sex couples in California to marry. This right was short-lived. In November 2008, California voters passed Prop 8, which subsequently prevented same-sex couples in California from marrying.
In May 2009, Kristin Perry and Sandra Stier applied for a marriage license in Alameda County and the County Clerk denied their application they are a same-sex couple. The Los Angeles County Clerk denied Paul Katami and Jeffrey Zarrillo a marriage license for the same reason. The couples sued the county clerks and various state officials. Then Attorney General Jerry Brown and Governor Arnold Schwarzenegger were both named to but declined to defend the suit. In November 2010, Jerry Brown was elected governor and Kamala Harris was elected attorney general. Both also declined to defend the suit. Instead, the group that wrote and campaigned for Prop 8, ProtectMarriage.com led by Dennis Hollingsworth, was allowed to intervene as serve as the defendant.
In 2009, the California Supreme Court found that Prop 8 was a valid enactment under California law. In August 2010, a judge on the United States District Court for the Northern District of California found that Prop 8 violated both the Due Process and Equal Protection clauses of the United States Constitution. ProtectMarriage.com appealed this judgment to the U.S. Court of Appeals for the Ninth Circuit. The Ninth Circuit upheld the District Court’s decision on narrower grounds.
Again, proponents for Prop 8 appealed the Ninth Circuit decision to the Supreme Court, which agreed to hear the case.
UNITED STATES v. WINDSOR – The “DOMA” Case
The second case, United States v. Windsor, or the Defense of Marriage Act (“DOMA”) case, examines three questions: (1) if DOMA violates the equal protection by denying married gay couples recognition under federal law; (2) if the Supreme Court could hear the case since the Department of Justice was appealing the lower court’s decision despite agreeing with the court’s decision; and (3) if the U.S. House of Representatives has standing or the legal right to even be involved in the case.
DOMA is a federal law passed in 1996, which defines marriage as “a legal union between one man and one woman as husband and wife.” In Section 3 of DOMA, same-sex couples are denied more than 1,000 federal rights, responsibilities, and protections that marriage offers opposite-sex couples. The denials include no health insurance for spouses of federal employees, no military spousal support and benefits, separation of couples from different nations, and no ability for spouses to file federal taxes jointly as married.
Under DOMA, the marriage between Edie Windsor and Thea Spyer, who were legally married in Toronto in 2007 after spending forty years together, is not federally recognized. Edie and Thea lived in New York when Thea passed away in 2009, a state that at the time legally recognized same-sex marriages performed in other jurisdictions. While New York recognized their marriage, the federal government did not. So, when Edie inherited her wife’s estate, she was charged more than $363,000 in federal taxes. If the federal government legally recognized their marriage, Edie would have paid no federal taxes.
Windsor filed a suit in the U.S. District Court for the Southern District of New York alleging that the federal government violated her equal protections by charging her estate taxes that it would not have charged an opposite-sex couple. She won.
The Department of Justice agreed with the District Court’s ruling and declined to defend DOMA, stating that it was unconstitutional. However, the Department of Justice (“DOJ”) did file a notice of appeal with the U.S. Court of Appeals for the Second Circuit so that the U.S. House of Representative’s Bipartisan Legal Advisory Group (“BLAG”) could intervene to defend DOMA instead of the DOJ. Despite BLAG’s intervention, the Second Circuit upheld the lower court’s ruling. It found that DOMA is unconstitutional under the equal protection guarantees of the Fifth Amendment.
Both Windsor and the DOJ filed appeals with the Supreme Court. Windsor, citing poor health and age, filed her appeal with the Supreme Court before the Second Circuit issued its judgment. The Department of Justice also filed an appeal. After the Second Circuit issued its decision, both supplemented their appeals.
SCOTUS could issue narrow rulings limiting their decision to California, or to California and other “everything but” marriage states. It could issue broad rulings bringing marriage equality to all states. Or it could issue negative rulings upholding the laws and leaving supporters of same-sex marriage to continue the fight for marriage equality.
Lambda Legal, a national legal organization that works in support of full recognition of LGBT and HIV-positive citizens, published a flow chart of the likely outcomes in both cases. View the infographic here: http://www.lambdalegal.org/sites/default/files/infographic-prop8-doma-small.png
WHAT TO WATCH
The language underneath the Court’s rulings will provide the most insight into the Court’s decisions and how it made them. Here are several things to watch.
1. Court punts on Substantive Issues; Decides on “Standing” or “Jurisdiction”
The Supreme Court will either decide the cases based on legal technicalities related to standing and jurisdiction or on the cases’ substantive arguments. Standing relates to who has the right to bring a court case. Jurisdiction relates to whether a court can even hear a case. In the Prop 8 Case, the Court will ask if the ProtectMarriage.com had standing or the right to ask the court to hear their appeal. In the DOMA Case, the Court will ask two questions: (1) Can Edie Windsor both win at the Second Circuit and appeal that court’s decision? (2) Are House Republicans (the people behind BLAG) properly taking the role of defending DOMA? If the court decides “no” on any of those questions, then the Court can punt on the substantive questions. Still, supporters of same-sex marriage would “win” on this technicality, as the lower court’s decisions would stand. Issues related to broader civil rights would have to wait.
The first substantive or non-punt question is about the level of scrutiny that the court will use to examine the laws. Ari Ezra Weldman from Towleroad.com writes that scrutiny “is like asking: Ok, before we see if you pass the test, we have to determine the passing grade. It's obviously a lot easier to pass when all you have to do is get a 50/100, and harder when you need a 90. If the Court takes the unlikely step of agreeing with President Obama (and rational legal thought) that discrimination on the basis of sexual orientation demands ‘heightened scrutiny’ (say, an 80 on the test), then look for DOMA and Prop 8 to be declared unconstitutional. Notably, denying already married couples federal benefits and preventing them from marrying in the first place are both so irrationally ridiculous, look for a substantive holding -- if the Court gets there -- that rejects the laws under any standard.”
Look for language related to the “passing grade” or the level of scrutiny that the Court uses to examine the laws. The higher the grade or the stricter the scrutiny, the bigger the win for proponents of same-sex marriage.
3. Equal Protection
The Court could find that DOMA and Prop 8 treat same-sex couples differently from and that there is not a good reason for these laws to do so.
Look for language regarding how the laws treat same-sex couples v. opposite-couples and what, if any, reason the Court gives to justify this treatment.
4. Breadth of the rulings
In the DOMA case, the Court could uphold DOMA, get rid of it entirely, or only strike it down in those states that allow same-sex marriage.
In the Prop 8 case, the Court could issue negative rulings against same-sex marriage, or limit its rulings to California, or expand its ruling to encompass the seven states that have “everything but” marriage, or hand down a national right to marry.
Look for language related to how broadly SCOTUS has issued its decision. The holdings or decisions in this case and the language used in these decisions will have a significant impact in the future of legislation.
Before DOMA, the power to define marriage has been traditionally and exclusively left to the states. Under DOMA, the federal government for the first time defined marriage and took away the power of the states to do so. The Court could find that DOMA is unconstitutional because it took away the states’ power to define marriage
THIS WEEK IN HISTORY REPEATING ITSELF
This week has been an important one in the history of gay civil rights in the United States. Tomorrow marks the ten-year anniversary of the Lawrence v. Texas decision, which struck down state sodomy laws and decriminalized consensual sex between adults of the same sex. This week also marks the anniversary of the Stonewall riots in 1969, a series of demonstrations against a police raid at the Stonewall Inn, a gay bar in Greenwich Village, NY, which many consider to be the most important event in the fight for gay rights in the United States.
Tomorrow’s decisions in Hollingsworth v. Perry and United States v. Windsor, regardless of what the actual decisions are, will mark another historic moment for our community. As many gather this weekend for Pride in New York and San Francisco, let’s hope that the decisions bring additional reasons to celebrate.
Whatever the outcome of tomorrow’s decision, there are legal steps that you and your partner can take both to protect your relationship, domestic partnership, or marriage. Please contact the Law Office of Sean C. Sobottka to discuss your needs at 310.735.9814 or email@example.com.