Same-Sex Marriages Likely to Resume in California

The Supreme Court’s decision to dismiss the Proposition 8 appeal for lack of jurisdiction leaves the legal status of Proposition 8 a bit ambiguous. It is important to note that the appeals have been dismissed, not the whole case. The Ninth Circuit’s opinion is vacated. But the trial was valid. After the trial, the district court sitting in San Francisco held that Proposition 8 was unconstitutional. That result now stands as though no appeal was ever taken. So, as of right now, as a matter of law, Proposition 8 is unconstitutional and unenforceable by the state of California, which means that same-sex marriages should be able to resume.

However, there will almost certainly be more litigation over this, and we will have to wait to hear what the state of California will actually do. But as the result stands right now, this is a victory for same-sex couples in California. If no further orders are entered, marriages of same-sex couples will have to resume in California fairly soon.

[Update: It is by no means a foregone conclusion that Proposition 8 is dead. Here is a good explanation of why.]

[Update: Governor Brown has ordered that marriage licenses be issued as soon as the Ninth Circuit lifts the stay, which will likely be today or tomorrow. Here is his statement: “After years of struggle, the U.S. Supreme Court today has made same-sex marriage a reality in California. In light of the decision, I have directed the California Department of Public Health to advise the state’s counties that they must begin issuing marriage licenses to same-sex couples in California as soon as the Ninth Circuit confirms the stay is lifted.”]

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Full Text of the DOMA and Proposition 8 Decisions

Here is the full text of the DOMA decision, in which the Supreme Court held DOMA unconstitutional.

Here is the full text of the Proposition 8 decision, in which the Supreme Court held that it does not have jurisdiction.

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DOMA Unconstitutional

The Supreme Court has stricken down DOMA. Kennedy wrote the opinion, and the four liberal justices joined. DOMA interferes with the liberty interests protected by the Due Process Clause.

It appears that the Court will not reach the issue of whether there is a fundamental right to same-sex marriage in either of the cases it is currently considering.

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What is the Ideal Result in the Proposition 8 Case for LGBTQ Rights Supporters?

It is very likely that the Supreme Court will issue its decision in Hollingsworth v. Perry tomorrow morning between 10:00 and 10:30 a.m. EST. So, on the eve of “the decision”[1] here is my question: what is the ideal result for LGBTQ rights supporters?

The answer may not be as obvious as seems. Consider why the right to marry is so important. It’s not, for example, the tax advantages. No, it’s the social impact of the institution of marriage that makes the issue important. What really matters is not whether the law allows two women to marry one another. What matters is that when those two women present themselves as a married couple, others recognize their marriage as equally legitimate, proper and socially acceptable as any other marriage.

That is why marriage is important. But if, tomorrow morning, the Supreme Court announces that the Constitution grants a right to same-sex marriage in all 50 states, that ruling will rob same-sex couples of at least some of the dignity that could eventually come by winning the marriage battle through the democratic process. Continue reading

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Same-sex Marriage Opinions Expected Tomorrow

The Supreme Court has just announced that it will issue all remaining opinions for the current term tomorrow (Wednesday) morning between about 10:00 and 10:30 a.m. Eastern. That should include the DOMA case and the Proposition 8 case.

I will try to post an update as soon as the opinions are issued.

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Affirmative Action in College Admissions Case Decided

The Supreme Court just released its decision in Fisher, the case determining whether the University of Texas’s use of affirmative action in its admissions process is constitutional.

SCOTUS held that the 5th Circuit used the wrong standard when determining whether the University of Texas’s program is unconstitutional. The Court did not create an outright ban on the use of race in admissions.

Here is the full text of the opinion.

Check back soon for my analysis.

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What Will Kennedy Do?–Same-sex Marriage Prediction Part Two

Justice Kennedy

Justice Kennedy

The Supreme Court should issue its ruling in the same-sex marriage cases this week, and as I explained in my previous post, eight of the nine Supreme Court Justices will likely split 4-4 along ideological lines in Perry and Windsor. That leaves the monumental decision of whether the Constitution guarantees a right to marry, regardless of sexual orientation, in the hands of one man: Anthony Kennedy.

Both sides have reasons to be optimistic about Justice Kennedy’s vote. Kennedy was appointed to the Supreme Court by Ronald Reagan in 1988, and for the first decade and a half of his time on the Court, he was considered one of the four conservative justices. He is now considered the swing vote, but he didn’t change; the Court did. The swing justice during Kennedy’s early years, Sandra Day-O’Connor, was replaced by the more conservative Justice Alito. So, conservatives can reasonably expect to have Justice Kennedy on their side much of the time—including, for example, in the Obamacare case last year.

But the best predictor of how a justice will vote in any given case is how that justice has voted in similar cases. Fortunately, we know quite a bit about what Justice Kennedy thinks about LGBTQ rights. The cases we have seen Justice Kennedy decide give liberals plenty of reason for optimism. The Supreme Court has decided two major same-sex rights cases in the past two decades, and Justice Kennedy has written the Opinion of the Court in both of them. Continue reading

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Will the Supreme Court Support Same-Sex Marriage?

It’s that time of year again! As frequent readers of this blog know, June is the month of heavy-hitting Supreme Court cases. The Court’s term ends at the end of June, and the Court rarely carries cases over from one term to another, so the Court stops hearing arguments and focuses on writing/issuing the big decisions once June starts.

The Court will probably issue its opinion in Fisher soon—more on that later (but here are some of my thoughts on the case). The Court will probably issue its opinions in the DOMA and Proposition 8 cases at the end of this month. So, it’s time for me to get a prediction on record.

Let’s start with a brief review of the safe bets in terms of how justices will vote. Keep in mind that the justices don’t declare their positions in advance, so nothing is certain, but certain justices are viewed as very safe bets to vote one way or another in high profile cases like this one.


Justices Scalia, Thomas and Alito are all very likely to vote to uphold DOMA and Proposition 8. In 2003, Scalia and Thomas both voted to uphold a state law banning homosexual sex. If they believe homosexual sex can be constitutionally banned, it would be shocking if they were to believe that homosexual marriage cannot be constitutionally banned. Justice Alito, appointed by President George W. Bush, is of much the same ilk.


Justices Ginsburg, Breyer, Kagan and Sotomayor are all likely to vote to strike down DOMA and Proposition 8. The most interesting of these four is probably Justice Ginsburg, who has at times suggested that Roe v. Wade had unfortunate consequences, in polarizing the electorate by removing the abortion issue from the democratic process. One could imagine that she might have similar concerns about removing the same-sex marriage issue from the democratic process, thereby hesitating to hold in the Proposition 8 case that there is a right to same-sex marriage in all 50 states. But Ginsburg is a liberal stalwart of the Court. I find it hard to imagine that Justice Ginsburg could allow herself to be the only vote standing between same-sex couples and the right to marry. It is probably more likely that she writes a separate opinion pointing out her concerns about removing the issue from the democratic process, but expressing the reasons why she believes that concern is overcome in this case.


The Chief Justice is a likely opponent of same-sex marriage in both cases. I hesitate to say that, because Roberts has shown in the past that he cares about how history regards him, and it seems to me that the same-sex marriage issue is similar to the civil rights issues of 50 years ago. The supporters of Jim Crow are not treated kindly by historians today. Historians in 50 years might see supporters of the traditional definition of marriage in a similar way. That consideration would seem to put Roberts in the pro-same-sex marriage category.

But there are too many problems with using that line of reasoning to rely on it. The line of reasoning relies on two assumptions: 1) Roberts cares how social-justice historians regard him, and 2) Roberts agrees that society in 50 years will overwhelmingly support same-sex marriage. Most of the evidence in support of the first assumption comes from Roberts’ vote in last year’s Obamacare case, in which he provided the swing vote to uphold the statute. But that was only one case. It is possible that Roberts did not care about historians at all and really is a big believer in the importance of the federal government’s taxing and spending power. Or, perhaps Roberts believes that the integrity of the Supreme Court is important and wanted to avoid a party-line vote in a politically-charged case (an interest that doesn’t apply as much in the same-sex marriage cases). The second assumption is also tenuous. Roberts might view the same-sex marriage issue as being more like the abortion issue than the civil rights issues of the 1960s. If that is the case, he might think that historians will treat him better if he stands up for what he believes is the correct legal decision at a time when there was a lot of pressure to conform to a changing political environment.

Also, Roberts’ comments during the oral arguments of these cases strongly suggests that he is an opponent of same-sex marriage. During the DOMA argument, he repeatedly[1] made thinly veiled strategic comments designed to persuade Justice Kennedy not to strike down DOMA on federalism grounds (more on that in part 2). During the Proposition 8 argument, Roberts articulated the central argument of the opponents of same-sex marriage as his own.[2]

So, the safe money is on the Chief Justice voting with the opponents of same-sex marriage in both cases. But that is by no means a sure thing. He might want to avoid the issues due to the historical significance and be inclined to hold that the Court doesn’t have jurisdiction. He could also surprise everyone and support same-sex marriage.

But both cases will probably come down—as usual—to the swing vote, Justice Kennedy, about whom part 2 of this post will be about.

[1] DOMA Transcript, pp. 81-83, 95-96

[2] Prop. 8 Transcript, p. 36.

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Even a Conservative Reading of the Constitution Supports a Right to Same-Sex Marriage

One of the more compelling exchanges during the oral arguments on the same-sex marriage cases came between Justice Scalia and Theodore Olson, attorney for the opponents of Proposition 8. Here is the exchange:

JUSTICE SCALIA:    I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON:             When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

JUSTICE SCALIA:   It’s an easy question, I think, for that one. At — at the time that the — the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.


JUSTICE SCALIA:    When do you think it became             unconstitutional? Has it always been unconstitutional?[1]

Mr. Olson eventually answered the question by saying, “it was constitutional when we -­ as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.”[2]

Justice Scalia’s question reflects constitutional philosophy of conservatives: original understanding. Continue reading

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Oral Argument Transcript in DOMA Case Released

Today’s oral argument transcript from United States v. Windsor, the case considering the constitutionality of the Defense of Marriage Act, can be found here.

My readers’ guide to the same sex marriage cases is here.

SCOTUSblog’s instant analysis of the oral arguments is here.

Further reading on the same sex marriage cases can be found here.

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