01 August 2012

DOMA and the Supreme Court

I was asked to do a post about why I am okay with, and actually excited that, Section 3 of DOMA is likely going to the Supreme Court this year (2012-2013). I haven't studied law or anything, but I have been reading the briefs and opinions, and so am going to share my understanding of those opinions (and some thoughts of my own). If you notice anything incorrect in what I say, PLEASE point it out. This is based solely on my ability to read the opinions/briefs and not on a detailed understanding of law. I expect Section 3 of DOMA to go down 5-4 or 6-3, where the five are Justices Ginsburg, Breyer, Kagan, Sotomayor, and Kennedy (likely with Kennedy writing the decision), and possibly joined by Chief Justice Roberts (with either he or Kennedy writing the decision). My vote prediction is based on Lawrence v. Texas, Romer v. Evans, and National Federation of Independent Businesses v. Secretary of Health and Human Services (the healthcare ruling).

DOMA is the so-called "Defense of Marriage Act" that defines marriage and spouse as strictly between a man and a woman for the purpose of Federal law. Since the law is super short, I'm just going directly post the three sections of the law (taken from http://www.gpo.gov/fdsys/pkg/PLAW-104publ199/content-detail.html):

Section 1:
"This Act may be cited as the `Defense of Marriage Act'."
Section 2:
"No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship."


Section 3:
"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."

The cases that the Supreme Court has received requests to rule on are in reference to just Section 3 (which basically says whenever marriage, as far as the Federal government is concerned, is only between a man and a woman). From my perspective, with these cases there are essentially three questions happening at once:
1) Is sexual orientation a suspect class, thus requiring laws discriminating on the basis of sexual orientation to be judged with strict scrutiny, and thus violate the 5th and 14th Amendments?
2) Is the 5th/14th Amendment's due process/equal protection clause violated by DOMA?
3) Does DOMA violate the 10th Amendment, which leaves all powers not given to the Federal government by the Constitution to the state/public?
I have separated the first and second question because it is not necessary for sexual orientation to be a suspect class in order for DOMA to violate the 5th/14th Amendments. Before I get too far ahead on that though, I should probably go into the 5th and 14th Amendments and what a suspect class is. Also, I am including the 5th and not just the 14th because some court cases have noted it in passing in conjunction with the 14th.

The Fifth Amendment to the Constitution states [emphasis mine]:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
The part of the 5th Amendment that matters in this case is the due process clause (bolded above)

Section One of the Fourteenth Amendment to the Constitution states [emphasis mine]:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 
 This part again repeats the due process clause (and clarifying that it applies to the states), and guarantees equal protect of the laws (laws apply to everyone equally).

The issue of suspect classes and heightened scrutiny comes in with the 14th Amendment. Laws have to distinguish between groups of people. We have to do things such as decide who is capable of driving, distinguish between different incomes for income tax, et cetera. Thus the question is when is making a distinction related to a legitimate government interest, and when is it not. If a law in question discriminates against a suspect or a quasi-suspect class, strict scrutiny must be applied (more on this below).

In order for a law to survive strict scrutiny it must pass three tests. It must have a compelling government interest, it must be narrowly tailored, and it must be the least restrictive means of fulfilling that compelling government interest. If it doesn't fall under strict scrutiny, then it just must concern a government interest.

In order to require strict scrutiny, there are four guidelines, two of which seem to essentially be required and two are a bit looser. The first (one of the essential) is that the group must have a history of experiencing discrimination. The second (the other essential) is that being a part of this group does not impair one's ability to contribute to society. The third (and a bit looser of a requirement) is immutability. This means the trait either can't be changed, requires extreme cost/pain to change, or is so central to a person's identity that asking for it to be changed is unreasonable. The final requirement is that the group is politically powerless. I have seen this defined in a few different ways, but it seems to mean that, at this point in time, the group is unlikely to be able to fix the discrimination they face through the standard political process (aka without using the courts).

Obviously discussing these four factors alone would take a lot of time, and could easily be the subject of another several blog posts. I'm thus going to gloss over this, and the arguments that have been used for and against sexual orientation fitting the categories. I think it is clear how sexual orientation fits the four categories, though there are some arguments that have been used against it.

The problem, at the level of courts that aren't the Supreme Court, is that there are cases (which might be) giving precedent to whether or not sexual orientation is a suspect class. One of those cases is Bowers v. Hardwick. This was a Supreme Court case ruling that sodomy laws were constitutional (and no, sodomy laws are not constitutional as the Supreme Court overruled that, but I will get to that later). The second is Baker v. Nelson, in which a Minnesota couple in the 70s took marriage equality to the Supreme Court, but the Supreme Court rejected the case as they didn't feel it had a significant federal question. In the 9th Circuit Court there is also the case High Tech Gays v. Defense Industrial Security Clearance Office in which the 9th Circuit ruled that sexual orientation was not a suspect class (though this is partially based on the previous cases I mentioned).

Obviously since those cases precedent has changed. Lawrence v. Texas overruled Bowers v. Hardwick (Note - Lawrence v. Texas was written by Justice Kennedy). The other case is Romer v. Evans, in which the Supreme Court ruled that Colorado Amendment 2 was unconstitutional (Note - Romer v. Evans was written by Justice Kennedy). The amendment would have prevented protection of minorities on the basis of sexual orientation. These cases did not test whether or not sexual orientation was a suspect class (the fact that the Supreme Court did not address this issue is part of the reason why courts are still wary of answering this question). Instead, they dodged the question with the reasoning that the laws were unconstitutional under a lower level of scrutiny, and thus they didn't even have to figure out if the higher scrutiny would have applied. Even with the lower scrutiny they still decided no government interest was involved with these laws, and it was instead motivated by animus (which is not a legitimate government interest). This is part of the reason why I list the suspect classification as a separate question. The Supreme Court could, again, not decide suspect classification and yet still strike down Section 3 of DOMA.

From my perspective, if the Supreme Court takes the 5th/14th Amendment route, they would first weigh if Section 3 of DOMA passes a low level of scrutiny. If it doesn't, then they dodge the suspect classification again (Justice Kennedy wrote the previous two decisions that did just this). If it does pass a low level of scrutiny, then they will have to decide if sexual orientation is a suspect class.

My guess is that they will again try to dodge deciding the appropriate classification level for sexual orientation, and either decide the case on the grounds that it doesn't pass low scrutiny and so no reason to even look to higher scrutiny, or that it fails the 10th amendment argument. They could also do as the First Circuit court did and hybridize the 10th Amendment and low scrutiny arguments and thus still not consider the classification.

Why I think they will again try to avoid the classification of sexual orientation is essentially that it is the conservative thing to do (and because Justice Kennedy, often regarded as the swing justice, has done this before). It, in a way, shows judicial restraint as they are narrowing their ruling to just the issue at hand and using as little as possible to do so. If sexual orientation is a suspect class, laws dealing with sexual orientation would essentially start to crumble (likely including all of the marriage discrimination laws). If they avoid the issue, they can instead say that the Federal government must refer to a state's definition of marriage rather than implement its own. The Supreme Court makes a narrow though significant ruling, and again leaves other issues to be addressed on another day (though this could also be viewed as kicking the can down the road when they may eventually have to face the issue of sexual orientation's classification). The Supreme Court can pick and choose what questions they answer (or can answer an entirely different question that still settles the case). For this reason, I think there is a good chance they won't touch the 5th/14th Amendment arguments at all, and instead will rule solely on the basis of the 10th Amendment (this is also where I see a 6-3 ruling to be the most likely). There is precedent that domestic relations are solely the jurisdiction of the states and not the Federal government (Hisquierdo v. Hisquierdo is cited as stating this in the 1st Circuit ruling), which would strike down Section 3 of DOMA.


The Tenth Amendment to the Constitution states:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This amendment essentially sets up our Federalist system. The Constitution essentially lists what the Federal government can do. Everything else is up to the states (with some of the Amendments putting limits on what both the Federal and State governments can do). The constitution doesn't give the Federal government the explicit ability to regulate domestic relationships, in fact that seems to be something that is a prime example of  a power the state government has that the Federal government does not. With DOMA the Federal government, for the first time, disregards what the state has to say on marriage, and instead implemented its own definition. The Federal government would have to justify which enumerated power gives them the ability to do this. Note - if you want to read more about searching for an enumerated power that grants the government the ability to do something, the health care ruling is a great example, where the court examined the arguments on the individual mandate under both the commerce clause and tax power clause and finding it did not have the power under the commerce clause but did under the taxing power (Note - Chief Justice Roberts wrote this decision).


The 10th Amendment argument is really only argued in Commonwealth of Massachusetts v. United States Department of Health and Human Services. This is mainly because the entity that can argue that a state's rights are being violated is a state.


Each topic, and each court case, can easily be its own post. I'm mainly just trying to hybridize it all from my understanding (plus there is a chance all of the cases will be combined and heard by the Supreme Court at one time). My prediction is 5-4 or 6-3 overturning DOMA. I think it will likely be on 10th Amendment grounds, or also fairly likely in my opinion on 14th Amendment grounds but avoiding the suspect class question. I think Kennedy is the most likely justice to write this decision. The reason I think the 10th Amendment grounds is slightly more likely is because it doesn't touch the issue of if there is a right to marry regardless of sex, and the Supreme Court would thus keep this case from being precedent in overturning state marriage bans. It is just a much narrower case, and the Supreme Court pushes off the state marriage issue to a later date.


Below are the court cases that I have seen, along with a short statement on each. Also, since I haven't mentioned it, there are a bunch of separate cases in various courts at the moment. Because they all question Section 3 of DOMA, the Supreme Court can bundle all of the cases into one hybrid case, and thus rule on them all at once. The paperwork has been done to make this realistic. There is an issue if they are not bundled, however. Justice Kagan did some work before she became a justice for President Obama on DOMA. For this reason some of the cases, though not all, would likely see her recuse herself. If they are all heard then she was a part of some but not others and thus the thinking is she would not feel the need to recuse herself. A 4-4 decision leaves the lower court ruling in tact, but could then cause the issue to be different in different circuits.


1) Gill v. Office of Personnel Management & Massachusetts v. United States Department of Health and Human Services (Note - these cases were bundled in the 1st Circuit)
Last deciding entity was: 1st Circuit (which covers Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island)
Next deciding entity would be: Supreme Court
Last ruling issued: 31 May 2012
Found: Combined the 10th Amendment argument with the 14th Amendment argument to rule Section 3 of DOMA unconstitutional without using heightened scrutiny.
Full Text


2) Golinski v. Office of Personnel Management
Last deciding entity was: District Court for the Norther District of California
Next deciding entity would be: 9th Circuit (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington)
Last ruling issued: 22 February 2012
Found: Heightened scrutiny should be applied to sexual orientation, but Section 3 of DOMA fails even the lower forms of scrutiny.
Full Text


3) Windsor v. United States
Last deciding entity was: District Court for the Southern District of New York
Next deciding entity would be: 2nd Circuit (which covers Connecticut, New York, and Vermont)
Last ruling issued: 6 June 2012
Found: Finds that DOMA violates even rational basis review (the lowest standard of review), and because of this does not address the issue of heightened scrutiny.
Full Text


4) Pederson v. Office of Personnel Management

Last deciding entity was: District Court for the District of Connecticut
Next deciding entity would be: 2nd Circuit (which covers Connecticut, New York, and Vermont)
Last ruling issued: 31 July 2012
Found: Heightened scrutiny should be applied to sexual orientation, but Section 3 of DOMA fails even the lower forms of scrutiny.
Full Text


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