By Kate Paine, Esq.

Last week, the Supreme Court of the United States heard argument in two cases involving same-sex marriage. This post will discuss the most important take-aways from the first of those two cases: that involving a challenge to the constitutionality of California’s constitutional amendment declaring that only marriages between one man and one woman are valid and recognized in California (often referred to as “Prop 8″). 

First, it is important to understand that, although the Supreme Court could determine that all laws refusing to recognize same-sex marriages as valid are unlawful (just as it may, sadly, decide that such laws are not prohibited by the Constitution), there is also the possibility that the Court’s decision will not affect any, or many, states other than California.  To comprehend why, it is essential to understand how the Prop 8 case arrived in the Supreme Court. 

Originally, the defenders of Prop 8 lost at the trial Court level, when a federal Judge in California determined that Prop 8 violates a fundamental right to marry and constitutes unlawful discrimination. The case was then appealed to the Ninth Circuit Court of Appeals.  Although that court agreed Prop 8 is unconstitutional, it did so on much narrower grounds than the trial court, finding Prop 8 unconstitutional because it stripped the right to marry from one group only: same-sex couples.  Because no other state in this country has first allowed same-sex couples to marry, and then stripped them of that right, if the Supreme Court agrees with the Ninth Circuit, then its decision will likely affect only California—a victory, but a small one.

There is also the possibility that the Court could reach a middle ground and adopt what commentators call the “nine-state solution.”  Under this approach, the Court would find that states like California which, through civil unions or domestic partnerships, already give same-sex couples all of the rights of married couples, cannot withhold from those couples the actual label of “marriage.”  This would lead to the legalization of same-sex marriage in California, Colorado, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island—a bigger victory.

Of course, the Supreme Court could also agree with the federal trial judge and decide that laws refusing to recognize same-sex marriages violate the Constitution—the biggest victory of all.  The Court would base this decision on one of two grounds (or on both grounds): 1) it could decide that marriage is a fundamental right for everyone, whether between opposite-sex couples or same-sex couples; or 2) it could decide that laws that prohibit same-sex couples from marrying discriminate unlawfully. 

Based on Wednesday’s oral arguments, at which some Justices described the institution of same-sex marriage as “uncharted waters,” newer than cell-phones and the internet, it is unlikely that at least five of the nine Justices will decide that the fundamental right to marry includes same-sex couples.  The Justices also discussed their concerns over the unstudied effects of same-sex parenting on children and of same-sex marriage on society, generally.  Importantly, however, Justice Anthony Kennedy (who many believe will be the Judge to swing the vote to one side or the other) did emphasize his internal conflict, caused by the 40,000 children of same-sex couples in California, who want their same-sex parents to marry, and who are clearly faring well.  

It is more likely that the Court will find that the law unconstitutionally discriminates against same-sex couples.  You’ll remember from my previous posts about DOMA that a government must have one or more legitimate reasons for enacting a law that discriminates against a particular group of people.  Yet, during oral arguments, the lawyer defending Prop 8 had trouble articulating any such reasons, other than to allow more time for studies to emerge regarding the “real world consequences” of same-sex marriage, and to encourage “natural” (i.e. mother-and-father) procreation.  Although some of the Justices appeared to agree with these points, others disagreed with viewing marriage as an institution whose primary purpose is to produce children, especially because many people, including those past child-bearing age, are permitted to marry.  Even more importantly, these Justices questioned the notion that a law that prohibits same-sex marriage will encourage those in opposite-sex marriages to procreate.

The main takeaways from the Prop 8 arguments, then, are that: 1) the Court may again legalize same-sex marriage in California, and may even require legalization of same-sex marriage in those states that give same-sex couples all of the same rights as married couples, but there is a good change it will not legalize same-sex marriage nationwide; and 2) the question of whether same-sex marriage should be legalized nationwide will likely come down to what the majority believes to be the best situation for children.  Hopefully, the Justices will realize that, what is best for children, is to have two parents devoted to loving and caring for the child.

By Kate Paine, Esq.

Unsurprisingly, the Obama Administration is pushing for the Court to review the recent Second Circuit Court of Appeals case, described here, which not only found Section 3 of DOMA unconstitutional but also held that laws that discriminate based on sexual orientation are subject to intermediate (i.e. harsher) scrutiny, rather than the First Circuit Court of Appeals case, which also found Section 3 unconstitutional but only applied rational basis review.

http://www.buzzfeed.com/chrisgeidner/obama-administration-sets-up-supreme-court-challen

By Kate Paine, Esq.

At first blush, yesterday’s opinion by the Second Circuit Court of Appeals represents a resounding victory, both in the fight to overturn Section 3 of DOMA (which, again, essentially says that only one man and one woman are considered “married” in the eyes of the federal government), and in the quest to achieve marriage equality nationwide.   

Yet, keeping this end goal of marriage-equality in mind, what actually stands out most about the opinion is that it simultaneously represents two steps forward and one half-step back.  The two steps forward are a result of both the positive outcome reached and the advantageous method used to arrive at that outcome.  Unlike the lower court in this same case, and unlike the First Circuit Court of Appeals, the Second Circuit applied the more rigorous intermediate level of scrutiny in reviewing (and rejecting) Section 3′s constitutionality.  Where applicable, this standard requires that the government have an important reason for discriminating and the important reason be substantially furthered by the discrimination. 

In deciding that intermediate scrutiny was appropriate, the court determined that sexual orientation qualifies as a “quasi-suspect” class because of the history of discrimination against homosexuals, the group’s historical lack of political power, and the obvious absence of any connection between homosexuality and one’s ability to perform in and contribute to society.  Then, applying intermediate scrutiny, the court concluded that all of the reasons given in support of Section  either did not qualify as “important,” or, even if important, were not actually furthered by refusing to recognize lawfully-wed same-sex couples as “legally married” for federal purposes.  Consequently, the court declared Section 3 unconstitutional.

The reason the court’s decision to apply intermediate scrutiny is itself a step in the right direction, is because the fate of both Section 3 and other laws that discriminate based on sexual orientation, like laws forbidding same-sex marriage, essentially go hand-in-hand.   If Section 3 cannot survive intermediate scrutiny, these other laws are also unlikely to survive.  Indeed, even the dissenting Second Circuit judge (who argued that rational basis review is the proper standard to apply) conceded that “an affirmance by the Supreme Court of the majority’s view [applying intermediate scrutiny] would likely doom the laws of the forty-one states which exclude same-sex couples from civil marriage.“    

That being the case, the reason this case also represents a half-step back is because, although the Second Circuit did apply intermediate scrutiny, the court came close to admitting that DOMA would survive under rational basis review, writing: “the existence of a rational basis for Section 3 of DOMA is closely argued. . . . [because there are] several justifications that alone or in tandem are said to constitute sufficient reason for the enactment[, including] . . . protection of the fisc, uniform administration of federal law . . . the protection of traditional marriage generally, and the encouragement of ‘responsible’ procreation.” 

This does not mean that, if the United States Supreme Court ultimately decides rational basis review is appropriate, the Court will also determine that Section 3 survives that scrutiny.  You’ll remember from a previous post that both the lower court in this case and the First Circuit Court of Appeals held the opposite—that is, that DOMA fails even rational basis review.  Still, the Second Circuit’s retreat from the holding in those two cases is unsettling.

As discussed in my last post, ideally, the Supreme Court will decide, like the Second Circuit did, that sexual orientation is a quasi-suspect class subject to intermediate scrutiny, and that it fails such scrutiny.  Then, not only will Section 3 of DOMA fall, so too are those laws preventing same-sex couples in all states from marrying likely to become a thing of the past.

The full text of the Second Circuit’s majority and dissenting opinions can be found here.