Going for Broke

by Stephen H. Miller on December 7, 2012

The U.S. Supreme Court has agreed to hear challenges to the anti-gay Defense of Marriage Act (DOMA), which bars the federal government from recognizing state-sanctioned same-sex marriages. That was expected. What wasn’t so clear was whether the high court would also hear the challenge to California’s Proposition 8, through which voters amended the Golden State’s constitution to nullify same-sex marriage, which the legislature had authorized. Had the court not heard that challenge, an appellate court ruling against Prop 8 would have been upheld by default and California’s same-sex couples would have again been able to marry (which is why many had preferred the court take a pass on this one).

It is widely anticipated, and hoped, that the Supreme Court will recognize that the DOMA provision banning federal recognition is unconstitutional, treating gay couples as second-class citizens, and doing so on the basis of anti-gay animus. Moreover, while the court might now uphold Prop 8 and deny Californians marriage equality, there is at least the possibility that the court, through its Prop 8 decision, could declare that all states must allow same-sex marriage as a matter of equal protection under the law. Would that provoke a backlash that could strengthen the anti-gay contingent of the GOP? Probably. There is a sound argument that it would be better in the long run to let marriage equality advance through the states (as Jonathan Rauch argues here). There is also an argument that equal means equal. These are indeed interesting times.

More. Walter Olson expects the Supremes to punt.

Furthermore. James Taranto argues that constitutional law favors striking down the DOMA provisions, but upholding Prop. 8. If the court agrees, another California vote on same-sex marriage is likely, and more likely this time to favor marriage equality.

More still. Conservative infighting: Rod Dreher vs. Glenn Beck. And similar infighting within the British Conservative Party (more on that here).

{ 25 comments }

Tom Scharbach December 7, 2012 at 10:13 pm

Ah, back to the “backlash”. I’ve been reading IGF for over a decade, and the oft-predicted “backlash” (at least 30 posts since 2000) hasn’t stopped us so far. It won’t this time, either.

And that is particularly true if the Court “declare[s] that all states must allow same-sex marriage as a matter of equal protection under the law”. If that is the ruling, the hard-core anti-gays will have no choice but to push for the FMA, which is a fool’s errand and might, just might, give less crazy Republicans the incentive to finally grow a pair. The “backlash” might be a blessing in disquise for Republicans.

In any event, I don’t worry about the currently-predicted “backlash” because I don’t think that the Court will go that far. It is too soon, politically.

But the Court almost certainly won’t overturn the decision of the 9th Circuit, which was carefully crafted to fit into Romer, either. Justice Kennedy won’t vote to overturn Romer, landmark with his name on it.

I think that the Court will affirm the 9th Circuit decision, without expanding it beyond California.

My guess is that the Court granted cert because Justice Scalia demanded that the Court do so. If I’m right, the case will be heard, Scalia will get to write a scathing Lawrence-like dissent, Thomas will join, and no harm, no foul. Marriage will come to California, the Court will not be out in front of the counrty, and path to a national decision will be open for the future.

I’ll be curious to see where Justice Alito and Chief Justice Roberts come down on the Prop 8 decision. Both are young, both can read the polls, and both know that if the Court rules against the 9th Circuit this year, both will still be on the Court when the Court reverses itself in 8-10 years. My guess is that if the Court’s decision is limited to the 9th Circuit Romer reasoning, the vote will be 7-2.

All that aside, the most interesting part of today’s decision was granting cert to the New York DOMA but not the Massachusetts case. The likely reason is that Justice Kagan indicated she would recuse in the Massachusetts case, which would have muddied the waters in that case. The fact that the Court didn’t agree to hear the Massachusetts case tells me that Section 3 of DOMA is toast. That’s good news, if expected.

Mark F. December 11, 2012 at 2:09 pm

It takes 4 justices to grant cert. Scalia can’t “demand” anything on his own.

I have my doubts about the court upholding the Prop 8 decision, but the case against DOMA seems strong. In any event, the court is very likely not going to affirm a general right to same sex marriage next year.

Tom Scharbach December 11, 2012 at 2:52 pm

What is known about the inner politics of the Court suggests that Justice Scalia is a bull in the china shop, using his position as the senior Associate Justice as a hammer.

Justice Scalia has little respect for judicial traditions (such as refraining from comment about issues currently before the Court) and I won’t be surprised, a decade from now, to learn that Justice Scalia told the Chief that he would raise hell in public about a decision to deny certiori.

But, as I said, it is just a guess. Who knows?

Houndentenor December 7, 2012 at 10:45 pm

The idealist in me would like to see marriage equality for all Americans by the summer. But the pragmatist in me knows that such a ruling by the court would lead to an ugly backlash. I agree that Section 3 of DOMA is toast (fingers crossed, but yeah, I don’t see how they dance around that one). Honestly I think if they replay a marriage initiative in CA in 2014 we could win, so no matter how the court rules on Prop 8 I think that’s just a matter of how long it takes. I’d rather see marriage rights be achieved through the legislatures than through the courts. I understand why some are impatient with that but it would be better politically.

One other observation. The polls moved on gay marriage rather quickly. I think everyone was caught off guard as it happened. I believe that the ugly tone of the anti-gay crowd pushed a lot of people off the fence and in our direction. Actually this is an overall problem for the right. It’s not that all Republicans are racist, sexist and anti-gay. Plenty are not. It’s that hardly a news cycle goes by without some candidate or party player saying something that goes viral. It’s not about the mainstream media any more. These things go viral on twitter, facebook and youtube. The majority of Americans don’t want to be associated with people who say stupid things about gay people, about rape, about minorities, or any other group. It’s the “ick” factor working the other way. It’s a nice change, if you ask me.

Tom Scharbach December 8, 2012 at 7:35 am

It’s the “ick” factor working the other way. It’s a nice change, if you ask me.

It is real simple. As gays and lesbians have made progress, the rational have been peeled off the anti-equality movement. What’s left behind are the hard core true believers, and the anti-equality message has become more shrill and less persuasive.

The anti-equality forces are down to the likes of Brian Fischer, Peter LaBarbera, Robert Knight, Tony Perkins, Peter Sprigg, Lou Sheldon, Janet Mefferd, Jim Daly and their ilk.

It has gotten to the point where even Republican politicians are becoming leery about being seen too close to these nutcases during daylight hours.

In my view (as apparently in yours), the more they talk, the more they help.

I think that this is a good day to remember (and salute) the critical role Ted Olsen and David Boies played in taking the bark off the anti-equality movement. Whatever the outcome of the Pro8 decision next year, the Prop 8 trial laid bare the fact that the anti-equality forces could come up with no rational basis for opposing marriage equality in California. That was the point where the house of cards they’d been building over the years started to tumble.

Jorge December 8, 2012 at 3:29 pm

Walter Olson writes on the selection of the case of a widow named Edith as the signature DOMA case, “Those aren’t exactly the kind of facts that attract public sympathy.”

Among the hundreds upon hundreds (and still growing) of mostly monetary rights that straight spouses have that gay spouses do not, telling a widow she was not married and denying her marriage even though her state recognized it is pretty high when it comes to affronts on one’s dignity. Even if it’s a very recent law in New York’s case.

But the central question here is to whom does civil marriage belong? Does it belong to Caesar, requiring Edith to give back what belongs to him, or does it belong to Pilate, the governor, whose authority to order life or death in his own province is unquestioned (even if he bows to religious politics)?

That the marriage in reality ultimately belongs to Edith is unquestioned, and not particularly relevant in deciding whether she keeps the money. They were already married for 40-odd years.

It is obvious that the Court is considering applying the DOMA case to only those couples in states that recognize same sex marriage.

Spaniel December 8, 2012 at 6:28 pm

“It is obvious that the Court is considering applying the DOMA case to only those couples in states that recognize same sex marriage.”

This might be a stopgap for the court, but sooner or later, it will become unworkable. Imagine that Adam and Steve are married in New York and file joint tax returns. Then Adam (who is a service member) gets transferred to Mississippi. What happens to their marriage? Do the rights that they enjoyed as a couple suddenly evaporate when they cross state lines? Are they married on the military base (a federal property) but unmarried when they go into town? If Adam dies, does Steve get survivor benefits or not?

Or imagine that Mary and Frances marry in Connecticut, but move back to Mary’s home state of Louisiana. Imagine they hit hard times, lose their jobs and their health insurance, and find themselves in need of Medicaid. How does the local Medicaid office treat them? As a couple or as singles? In this case, we are talking about a program involving Federal dollars, but administered by the state. Which government determines their marital status? It has implications for how their income is computed, and thus their ability to qualify. And if Mary dies and Frances applies for Social Security survivor benefits, does she qualify because their marriage is recognized in some states, and thus by the federal government? Or does she not qualify, because the marriage is not recognized in their state of residence?

Or let’s take a case involving estate taxes, like Edie Windsor’s does. Let’s assume that John and Bob were married in Massachusetts in 2010, but moved to Florida to retire, and then Bob dies. Let’s assume Bob had a net worth of, say, $10 million. Is the estate subject to federal estate taxes because they lived in Florida at the time of Bob’s death? Presumably, if they had still be living in Massachusetts, John would inherit tax free like any other spouse.

These are just a few scenarios I can imagine. If DOMA is partially overturned, so that the federal government recognizes same-sex marriage only in states that allo same-sex marriage, there will very soon be people who marry legally and then cross state lines, and because federal and state laws are so overlapping and so intermixed, it won’t be long before real conflicts arise. There is also the reality that we’ll wind up with a system of apartheid, in which, for example, Joan is allowed to make end-of-life decisions for her wife if they live in Iowa, but not if they live in Wisconsin.

Doug December 8, 2012 at 9:26 pm

If DOMA is declared unconstitutional that would seem to mean it was invalid since passed. Do gay couples in Massachusetts and other states get to amend their Federal Income tax for the past 3 years and file jointly. What about Social Security. Can you go back and change your elections regarding spouses?

There are tons off questions that are going to need working out.

Inahandbasket December 9, 2012 at 10:19 am

“It is obvious that the Court is considering applying the DOMA case to only those couples in states that recognize same sex marriage.”

How so? Can you give a specific example?

I think it is brilliant that DADT was rescinded prior to DOMA, Section 3 coming to SCOTUS. I imagine there are lawsuits from same sex married servicemembers just waiting to be filed if Section 3 is only for residents in marriage equality states. It’s simply unworkable.

If the DOD isn’t filing an amicus brief with this specific perspective in mind, Jorge’s contention will be a mess for the military.

Jorge December 10, 2012 at 8:48 am

How so? Can you give a specific example?

Actually that would depend on whether or not there are other appeals from states that do not recognize SSM.

TomJeffersonIII December 9, 2012 at 3:30 pm

Hmm.

1. If this was a case (pardon the pun) of Justice Scalia wanting to make the same sort of statement he made in Lawrence, then the outcome will likely change very little — in the short term.

2. The Justices that are sympathetic are probably leery of creating the sort of polarizing that has happen with abortion, which means waiting a bit until public opinion changes.

3. I suspect that the ‘saving face’ position will be to keep the decision in California and compel the Feds to recognize gay marriage if the State recognizes it.

Don December 10, 2012 at 1:31 pm

I believe some of the concerns here are misguided. If a couple married in Massachusetts but moved to Florida, the federal government would still recognize that marriage. Florida, however, would not. So all federal estate taxes would not apply.

This was happening with the miscegenation laws. Currently, each state has different definitions of marriage. Some may marry at 16, others not until 18. But once they are married, the federal government recognizes all of them wherever the couple happens to be at the moment.

Generally, states recognize each other’s marriages even if they are not qualified as such in their state. The constitutional amendments ban this “you’re married when any state says you are” approach. This will be the legal battlefield, but only in situations where the marriage is recognized federally but not on the state level.

For the military, it will be moot. They will be married when a single state says they are. That is how it is now and has been forever. The issue will be the Windsor cases of settling an estate where the state where the estate is probated does not recognize gay marriage. That, and other ways. It is possible that states such as Florida “borrow” the laws of other states where the marriages were valid and a Florida judge must decide the case based on where the contract was entered into.

This happens every day in car insurance cases. Bought your car insurance in Massachusetts? Snow birding in Florida half the year and get into an accident? Florida judges typically have to use the language of Massachusetts law in deciding those actions in Florida courts. Our firm handles such cases with regularity. Sometimes coverage exists under Florida law, but not Massachusetts law, so the insurance companies battle to say Massachusetts law applies. Problem here for the anti forces is no one has standing trying to make sure the bad law applies.

Now this is immensely complicated and who knows how that will go. But I don’t see how the feds ignore a Massachusetts marriage that ends in death in Florida. If we had to register our marriages in our new home states like we do driver’s licenses, there would be a way. But there is no process to register a Massachusetts marriage in Florida. This is how I don’t see most of the scenarios presented here as having any real validity. They sound plausible, but that’s not how the law is currently working in similar situations.

It’s a mess, but the law has been dealing with these kinds of conflicts for more than a century. It will continue to be a mess until a degree of uniformity is reached much like we have now (can’t get married at 16 in this state, but recognizing 16 year old marriage that happned in that state).

clayton December 10, 2012 at 4:58 pm

Here’s a question for you, Don: my husband and I were married in Canada. We live in Louisiana. If either one of us (but not both of us) was female, our marriage would be recognized in all fifty states and by the federal government. Right now it is recognized by 9 marriage equality states, but not by our home state or by the federal government.

So if DOMA is partially overturned, and the federal government recognizes same sex marriages performed in states where they are legal, does that recognition also extend to marriages performed in other countries where such marriages are legal? Would a partial overruling of DOMA mean that my husband and I get federal recognition?

Tom Scharbach December 10, 2012 at 8:23 pm

Would a partial overruling of DOMA mean that my husband and I get federal recognition?

Clayton, if Section 3 of DOMA (“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.”) is ruled unconstitutional, your Canadian marriage should, as a matter of law, be recognized for federal purposes. Repeal of Section 3 of DOMA will not, of course, reguire that Louisiana recognize the marriage.

Jorge December 11, 2012 at 1:31 am

Generally…

This will be the legal battlefield, but only in situations where…

Now this is immensely complicated…

It’s a mess…

Urgh! Fine. I can see why the Supreme Court is hearing this so “soon”.

Tom Scharbach December 11, 2012 at 7:11 am

If past is prolog, Jorge, the Court’s declaration that DOMA is unconstitional won’t be the end of the political games, either.

We can expect a rearguard war, just as we had on school desegregation, voting rights and abortion, trying to limit the federal government’s recognition of same-sex marriages within the boundaries of the Court’s ruling.

Thinking about Clayton’s situation (valid Canadian marriage, not recognized in Louisiana) an obvious line of attack will be to seek to limit federal recognition of foreign (e.g. Canadian) marriages to marriages that are valid in the state in which the citizen is resident (e.g. Louisiana).

Another obvious line of attack will be to double down on laws requiring that federal and state filing status be identical, precluding married couples who are resident in states that do not recognize same-sex marriages from filing as married for federal purposes.

The list goes on, as Don pointed out. The path forward will continue to be slow and messy.

But we can take heart. We have steadily, if slowly, brought the American people over to our side by coming out and living openly in our families, our workplaces and our communities. The shift in attitudes we’ve gained won’t change; if anything, it will accelerate. And the re-election of President Obama eliminated the most serious potential roadblock to “equal means equal” for the future, the near certainty that President Romney would have appointed two or three Scalia clones during his tenure.

I understand and share your frustration, but we both need to keep our eye on this important fact: We are winning the war for equality, and younger people like you will almost certainly live to enjoy equality under the law, even if those of us in our last decade of life will not. But those of us who are older can look back at the last forty years and take satisfaction in the fact that the outcome is certain, in part because of the battles we fought years ago.

TomJeffersonIII December 10, 2012 at 3:12 pm

As an aside, I would say that in terms of advancing positive change through the Congress (something that often gets talked about in lieu of ‘activist’ judges/backlash,etc) their is a wee bit of a snag.

Their are certain States and certain Congressional districts where the Republican and the Democratic party nominee are probably not going to be eager/supportive.

Granted, the Democratic Party nominee may be less likely to go out of his way to push for anti-gay laws, so I am not going to say that in these cases their is no difference, but until the voters in these districts are more supportive, getting bills passed will be a problem.

Doug December 11, 2012 at 6:36 pm

Since Chief Justice Roberts did pro bono work on a gay rights case, and was instrumental in winning, in 1996 maybe he will continue that in one of the current cases before the court.

http://articles.latimes.com/2005/aug/04/nation/na-roberts4

Tom Scharbach December 11, 2012 at 9:23 pm

Very interesting, Doug. Chief Justice Roberts’ pro bono work was on Romer.

It strengthens my conviction that we may well get a 6-3 or 7-2 decision if the Court’s opinion is grounded in Romer, affirming the 9th Circuit on narrow grounds.

BTW, you can find an in-depth legal analysis of the options before the Court and the legal implications of various outcomes at this link to the Utah Law Review.

Houndentenor December 12, 2012 at 10:07 am

Scalia, of course, reminded us this week that he’s already made up his mind. He’s the right’s favorite judge and that for me is just another reason to be a Democrat. I shudder at the thought of what the court might look like with a few more like him.

Tom Scharbach December 12, 2012 at 11:33 am

I shudder at the thought of what the court might look like with a few more like him..”

Among other things, he reminded us that in his eyes, the Constitution is “dead, dead, dead, dead”. A few more like him on the Court and it would be.

Don December 12, 2012 at 1:45 pm

Well, at least we never got Bork. He makes Scalia look like Thurgood Marshall.

I’m all for more Kennedys. They aren’t split the baby moderates. he actually sees merit in both worldviews. which is where i’m coming from.

Jorge December 13, 2012 at 2:28 am

Personally I’d prefer a couple of Stevenses… but maybe Sotomayor will become something useful.

I like this Court, but I think I liked it a little better when O’Conner was there.

Tom Scharbach December 13, 2012 at 9:53 am

Conservative infighting: Rod Dreher vs. Glenn Beck.

Although he is no friend of marriage equality, Rod Dreher makes a good point:

Whatever the flaws in Beck’s argument and vision, I think it’s highly significant because it shows that this is the route through which the populist right will come to embrace same-sex marriage. If conservatives are going to accept SSM, they ought to at least understand the full meaning, and the implications, of what they are accepting.

The libertarian position on marriage equality (“Sexual orientation, preference, gender, or gender identity should have no impact on the government’s treatment of individuals, such as in current marriage, child custody, adoption, immigration or military service laws. Government does not have the authority to define, license or restrict personal relationships. Consenting adults should be free to choose their own sexual practices and personal relationships. – Libertarian Party 2012 Platform“) is essentially a cop out, predicated on the proposition that civil marriage makes no difference.

A strong conservative pro-marriage argument exists, made by Jon Rauch (an IGF contributor) among others. Pro-equality conservatives should be making a strong, affirmative case for marriage equality, countering rather than ducking the arguments made by the anti-equality forces, if the Republican Party is to be convinced to change course.

Erica Hartman January 10, 2013 at 1:12 am

The divisive act, which was passed in 1996, bars federal recognition of such marriages and says other states cannot be forced to recognize them.

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