Open thread: SCOTUS Watch; Update: DOMA unconstitutional; Update: Punt on Prop 8 over standing

posted at 10:01 am on June 26, 2013 by Ed Morrissey

Today’s the big day for the cases dealing with same-sex marriage, or so we assume.  Maybe the Supreme Court justices want to drag out the 2012-3 session all the way to the August recess for Congress?  I’d guess that they’d rather get out of town as soon as possible.  Rather than try to push a breaking-news post in the next 30 minutes, let’s just open a thread for updates on the cases.  As always, keep an eye on SCOTUSblog for updates and analysis.

In the meantime, here was yesterday’s tea-leaves analysis from National Organization for Marriage chair John Eastman, whom I interviewed last night on the Hugh Hewitt show:

5 cases were decided on Monday, and another 3 today.  That leaves 3 to go, and the Chief Justice announced this morning that they would be released tomorrow at 10:00 a.m. Eastern time.  There is a biggie – Sekhar v. United Stateswhich considers whether advice from a government lawyer can be considered “property” that can form the basis of an extortion charge.  And there are two cases that have garnered little attention – United States v. Windsor and Hollingsworth v. Perry.  Oh, wait.  Those are the marriage cases!

It appears as though Justice Scalia may be writing the opinion in Sekhar, Justice Kennedy the opinion in Windsor (the constitutional challenge to the federal Defense of Marriage Act, DOMA), and the Chief Justice writing in Perry (the constitutional challenge to California’s Proposition 8).  This prediction is based on reviewing the authorship of the opinions that have already been released from each sitting of the Court and then lining up the remaining opinions with the Justices who have not yet authored an opinion from that sitting.  For example, the only case argued all the way back in October that had not been released before this week was Fisher v. University of Texas, and the only Justice who had not authored an opinion out of the October sitting was Justice Kennedy.  True to form, Justice Kennedy was the author of that opinion when it was released yesterday — holding that Texas’s race-based affirmative action plan has to be subjected to strict scrutiny by the lower courts and will therefore likely be held to be unconstitutional.  (That, by the way, is not as far as we urged the Court to go in our brief in the case — we’d like to see the promise of color-blind treatment for all citizens be fully vindicated — but it is an important step in the right direction!).

Similarly, Justice Alito was the only Justice without an opinion from the January sitting, and Koontz v. St. Johns River Water Management District (another case in which the CCJ was involved!) was the only undecided case.  This morning, Justice Alito was the author of the majority opinion inKoontz, an important property rights case holding that government cannot condition the issuance of a permit on the relinguishment of property rights that would be unconstitutional “takings” if done directly.  Another win for the good guys, for property rights, and for the Constitution!

So the only case still undecided from April is Sekhar, and the only Justice without an opinion from that sitting is Justice Scalia.  And the only two cases undecided from March are the two marriage cases, and the Chief Justice and Justice Kennedy are the two justices without an opinion from that sitting.

That doesn’t necessarily tell us the outcome in the marriage cases, of course, because there are complicated jurisdictional questions and several different legal theories at issue in each case.  But as a strong supporter of traditional marriage, I remain very optimistic that Proposition 8 will be upheld.  The arguments against it, which run the gamut from “no jurisdiction to even hear the case” to “the Constitution mandates same-sex ‘marriage’ in all 50 states,” simply fell flat during oral argument back in March.

We’ll see soon enough.

Update: Probably not much of a surprise:

https://twitter.com/ReutersUS/status/3498905220070768640

This went 5-4, with Kennedy joining the majority.  Scalia and Roberts wrote the dissent.  The majority relied on the equal-protection argument.  The opinion is now posted.

Update: From the conclusion of Kennedy’s opinion:

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against  denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors,  Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar-riage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Again, I don’t think anyone will be too surprised by this decision.  The Prop 8 case in California may end up surprising a lot of people, depending on outcome.

Update: Here’s the connecting thread I see between this ruling and the one yesterday on the Voting Rights Act:

If the court is consistent on this point, they won’t interfere with a referendum in California.  We’ll see.

Update: A further clarification from Kevin Russell at SCOTUSBlog:

To be clear: Windsor does not establish a constitutional right to same sex marriage. It was important to the outcome that the couple in the case was legally married under state law. The equal protection violation arose from Congress’s disrespecting that decision by New York to allow the marriage.

Update: Looks like the court has punted on Prop 8. Roberts joins Scalia, Ginsburg, Breyer, and Kagan in declining to allow standing to a private citizen to defend a state statute when the state itself declines to do so. They will vacate the 9th Circuit’s decision with a remand to dismiss the appeal.

This decision bothers me a lot more than the DOMA case.  The voters in California amended the state constitution by referendum legally, to define a legitimate government policy regarding the recognition of marriage.  The court is making the case that this is a matter for California to settle, not the federal courts, and there is a very good case to make there.  However, the effect of this is to overturn an election whose legality was never in doubt just because some people didn’t like the outcome.  That to me is a more dangerous outcome than a precedent-setting decision on standing.

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This sounds to me like a distinction without a difference. You acknowledged that gays can technically still get a marriage under the law, just not the marriage they WANT. To the PERSON they want. I don’t see any clear definition of “reasonable” that would satisfy this issue.

It’s not just that they’re being prevented from getting married to one specific person, it’s that they’re being effectively prohibited from marrying any person they could ever be reasonably expected to form a relationship with. That’s the difference.

The DOMA case was decided on Fifth Amendment grounds because it dealt with a federal law. The fact a near-identical clause is found in the Fourteenth Amendment directed at the states strongly suggests to me that a challenge to a state law on Fourteenth Amendment grounds that hits SCOTUS will be successful. The Bamster doesn’t need to agitate for it; I think the writing is already on the wall.

There may have been articles extolling the virtues of incest or polygamy before this ruling but articles don’t mean a whole lot in and of themselves. Where are the successful court cases? You won’t find them because they don’t exist and they’re no more likely to.

Let me try to put it another way. I’ll focus on the family unit. Legalizing gay marriage does no harm to existing family structures. Forbidding gay marriage does not make it likely that homosexuals will form happy, stable, committed relationships with a member of the opposite sex (something I think we’ve both heard personal stories attesting to). The best chance these people have to form a stable, secure relationship is to allow them to marry each other. No family is destroyed and no harm is done. On the contrary, society benefits from the formations of a new, stable family unit.

Contrast this with incest. By definition incest occurs within a family so we’re already out the gay marriage benefit of the addition of a new family, and instead incest radically alters an existing one. If my father marries my sister that makes her my stepmother and him my brother-in-law. To say the very least, you’re confusing existing relationships within a family unit. Also as our 50+% divorce rate will attest to, most relationships end. Sort that out in a unit that’s still going to be a family when the dust settles; we’re talking about great harm being done to the family that existed before the incestuous marriage took place. Serious negative consequences like these are totally absent from the gay marriage question. They are very different issues and that’s why the courts will have no trouble upholding the incest laws once gay marriage is legalized.

I do want to clear up one thing with you personally though. When I first jumped into the thread I thought you were running the same act that blink is right now and I can see now that that’s not the case. I was wrong about that and I apologize for it.

alchemist19 on June 28, 2013 at 4:08 PM

*words*

blink on June 28, 2013 at 2:28 PM

FIFY

alchemist19 on June 28, 2013 at 4:09 PM

Let me try to put it another way. I’ll focus on the family unit. Legalizing gay incestuous marriage does no harm to existing family structures. Forbidding gay incestuous marriage does not make it likely that incesters will form happy, stable, committed relationships with a member of the opposite sex (something I think we’ve both heard personal stories attesting to) someone else. The best chance these people have to form a stable, secure relationship is to allow them to marry each other. No family is destroyed and no harm is done. On the contrary, society benefits from the formations of a new, stable family unit.

alchemist19 on June 28, 2013 at 4:08 PM

FTFY

And on and on.

njrob on June 29, 2013 at 5:47 AM

it’s that they’re being effectively prohibited from marrying any person they could ever be reasonably expected to form a relationship with.

As I said before, “reasonable” is a term so vague and subjective in this context that I have no idea how it could be applied in a way that satisfies the issue. These “expectations” you’re talking about are based on expectations that we as a culture apply to such relationships, and I will remind you that a previously-cited argument related to interracial marriage had gender so far removed from expectations that they left it out altogether and went straight to polygamy.

There may have been articles extolling the virtues of incest or polygamy before this ruling but articles don’t mean a whole lot in and of themselves. Where are the successful court cases?

Where were the successful court cases 30 years ago? And even now, these decisions are taking place in an environment where the measure was voted down in multiple states, and constitutionally banned in what is otherwise one of the most progressive states in the union.

What I’m talking about is the fact that, now that the traditional definition of marriage has been deconstructed via legal precedent, the social pressure to embrace the broader idea of marriage “equality” is already underway. And one thing of which social progressives are often convinced, it’s that if they keep working the crowd, they’ll get their way sooner or later.

The best chance these people have to form a stable, secure relationship is to allow them to marry each other.

The irony of this is that this argument was put forth by supporters of traditional marriage, and scoffed at by people who pointed to the increasing number of un-married co-habitators (read: un-married but happy) and/or divorces (read: married but un-happy). Even you trot out the old “half of marriages end in divorce” meme, possibly not realizing that saying so undermines your claim that marriage is critical to stable, secure relationships.

As an aside, what that really means is that the divorce rate year-on-year is half of the marriage rate for the same year. That’s not the same thing as saying half the people getting married that year are divorcing that same year. It also disregards other confounding factors like multiple marriages among select persons. When you look at the number of persons who married one time and stayed in that first marriage over an extended period, the real success rate is harder to pinpoint but is reported anywhere from 70% to 90% or more.

I do want to clear up one thing with you personally though… I was wrong about that and I apologize for it.

alchemist19 on June 28, 2013 at 4:08 PM

That’s not a problem. You stayed on board and took the effort to listen, and that goes a long way. A lot of people don’t, choosing instead to immediately assume the worst, frame their entire engagement around that, and refuse even to consider any other possibility. That is the kind of behavior that irks me, not this.

The Schaef on June 30, 2013 at 4:17 AM

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