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

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:

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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