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Bench Memos

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The Struggle Continues



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Here is the good news out of the Supreme Court today: the justices did not say there is a federal constitutional right, good nationwide, of same-sex couples to be married under the law of their states. Ted Olson and David Boies, representing the plaintiffs seeking to overturn Prop 8, threw that long pass and it was incomplete. Since the majority of the Court in Hollingsworth v. Perry held that the proponents of Prop 8 did not have standing to appeal the district ruling to the Ninth Circuit, that appellate court’s ruling is “vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction” (quoting the conclusion of Chief Justice Roberts’ opinion). But does this mean that the Ninth Circuit can, should, or will vacate the ruling of Judge Walker in the district court, where the trouble began with the state officials declining to defend Prop 8 at trial? This possibility is raised by Ed Whelan (following Vikram Amar) below, who wonders aloud whether there was genuine adverseness at the district court. If not, then a default judgment applying only to the two couples bringing the lawsuit against Prop 8 would be the correct legal outcome.

Even if that is so, obtaining favorable action on such a narrowing effect — out of the Ninth Circuit or state officials — would be a tall order. So here’s the bad news about the Hollingsworth case: it very probably means that same-sex marriage is back in California. That is certainly how Governor Brown and company want to understand it, and they will pull out all the stops to get county clerks to toe the new line.

The good news in the U.S. v. Windsor case is that it seems to honor the authority of states to determine who has the right to marry. Indeed, much of the reasoning of Justice Kennedy’s badly confused majority opinion is based on the proposition that it is states that confer “dignity and status” on couples who marry. And the penultimate sentence of Kennedy’s opinion is this: “This opinion and its holding are confined to those lawful marriages” contracted under states that have already legalized (by hook or by crook) same-sex unions under the name “marriage.” In other words, Section 2 of the Defense of Marriage Act, which protects the right of a state to decline recognition of marital status to same-sex couples married in another jurisdiction, is technically unaffected by today’s decision.

The bad news out of Windsor, though, is very bad indeed. First, as Justice Scalia notes, we have heard this tune whistled before, that a ruling’s obvious implications are not to be inferred. We heard it in 2003’s Lawrence v. Texas ruling on same-sex sodomy, which wasn’t supposed to implicate marriage rights–and was promptly relied on by the Massachusetts high court months later, and is relied on today in Windsor itself to some extent.

Second, the ground on which Windsor is decided — a patented Kennedy muddle of unstated constitutional premises combined with arrogant, demeaning moralizing — is further ammunition for the advocates of same-sex marriage to attack both Section 2 of DOMA, when couples move from state to state, and state laws and constitutions restricting locally celebrated marriages to those between a man and a woman. For if the real impact of Windsor is in its rhetoric — all will o’ the wisp “injury and indignity” and “stigma” as the effect suffered on one side, with “animus” as the cause on the other–then we can expect a future court, reaching the merits of challenges to state marriage laws, to respond favorably to litigants who pick up these newly forged legal tools and use them to further effect.

For today, the marriage laws of all fifty states remain in the power of the people of those states to preserve or restore. Yes, even in those states that have taken the wrong turn down the path of redefining marriage, this is true. And that is the best news one can glean from today’s cases. But how much longer this will be true, one cannot say. The tyrannical impulses of the Supreme Court ran very strong today in the Windsor case. Either they will be checked, or we will see even worse things in the days to come.



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