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June 21, 2013

A Preview of Next Week’s Supreme Court Ruling in Hollingsworth v. Perry: What to Expect and What to Look For

Cross posted from Justia's Verdict.

As millions of people eagerly await next week's Supreme Court action in Hollingsworth v. Perry, the case from California involving Proposition 8 (the voter-enacted ban on same-sex marriages in the Golden State), I offer below a few thoughts on what to expect and what to look for in the Court's ruling.

We Should Not Expect a Definitive Resolution of the Federal Constitutional Question of Same-Sex Marriage

First, I don't think we will get a big resolution of the meta-question whether the federal Constitution's Fourteenth Amendment requires recognition of same-sex marriage.  Why?  Because a ruling in either direction is fraught with peril.  The Court (or at least its middle, controlling wing) is probably not ready to proclaim a national right when roughly three-quarters (38) of the States currently do not recognize same-sex marriages.  At the time of Loving v. Virginia, the 1967 case striking down Virginia's ban on interracial marriage, only 16 (or less than one-third) of the States prohibited marriage across races.  And in Lawrence v. Texas, the case from a decade ago in which a divided Court invalidated Texas' attempt to criminally punish someone for engaging in homosexual conduct, the Court noted that only a handful of states at that time actively prosecuted persons for similar conduct.  Even the momentous equality ruling Brown v. Board of Education did not call into question the laws of more than 20 or so states that mandated educational segregation in 1954.  As bold as the Supreme Court has been in protecting liberty and equality rights, past practice does not suggest a likely proclamation of a national right here, when things are so fluid in the States.

But that fluidity also cuts against a ruling flatly rejecting a national right to same-sex marriage.  Because things are changing so quickly (witness the three states that have decided to legalize same-sex marriage just in the few months since the Supreme Court heard oral arguments in the Proposition 8 dispute), the number of states embracing gay marriage could increase over the next decade from 12 to something in the range of 30 or more.  So the Court (or, again, its middle wing) may not want to deny a same-sex marriage right claim altogether next week, because to do so would make it harder (on account of stare decisis) for the Court to recognize a national right in the coming years, should a majority of Justices think doing so is the correct constitutional thing.

In short, my sense has always been that the Court had no desire to wade into the same-sex marriage thicket while the issue is percolating so actively in legislatures and state courts, and that the only reason the Court granted review in the Defense of Marriage Act (DOMA) and Proposition 8 cases this year is that lower federal courts invalidated these prominent enactments.  (That is to say, had lower courts upheld DOMA and Proposition 8, I think the Justices would have been content to deny review.)  Having been essentially forced to take cases before the Justices really wanted to weigh in at all, the Court will, I think, try to resolve less, rather than more.  In the DOMA case, there seemed at oral argument to be some support among the Justices to invalidate the challenged provision of DOMA without imposing same-sex marriage on unwilling states (by relying to some extent on federalism rather than individual rights), and I think in the Proposition 8 case the Court will also look to act as minimally as reasonably possible.

Narrower Options in the Proposition 8 Case

So what are the remaining options for the Court concerning Proposition 8, and which ones are the most likely?  One is that the Court could reject the plaintiffs' assertion of a national right to gay marriage, but make clear that things could change as the nation evolves on this question.  This is a possible route, but not a very attractive one for the middle/left of the Court, because the takeaway headline/holding would still be the rejection of the right.  And this would-if the Court were then to want to reverse course and accept the right in the near-term future-require the Court to offer a somewhat contentious explanation of how the meaning of the Constitutional document can change so rapidly.  Easier-for those Justices who think they may embrace the claim down the road-to avoid the broad question altogether for now.

A second option would be to strike down Proposition 8, but do so on the narrow grounds used by the Ninth Circuit and urged by the Solicitor General, grounds that would not invalidate the laws of all 37 other non-same-sex-marriage states, but rather only some small number of them.   The problem is that the Ninth Circuit's reasoning-which included the idea that California's ban is hard to justify as rational because the state has gone so far down the road to equalizing the rights of gay and straight couples-doesn't really work.  Many of the Justices at oral argument-even those generally thought to be more liberal or moderate-made the point that telling a State that it can't be rational in moving incrementally simply because it has moved at all is odd, at the very least.  The argument is a tough sell, even though the Ninth Circuit bought it.

A third choice would be to simply dismiss the Proposition 8 case from the Court's docket altogether.  Such a dismissal (known as a "DIG", which is short for "Dismiss as Improvidently Granted") is certainly possible, and would enable the Court to say nothing at all about Proposition 8.  It would be as if the Court had declined to grant review in the first place.  But, as I've explained before, a DIG is hard to square with the decision of four Justices to grant certiorari in the first place; nothing in the case has really changed since the original grant.  Moreover, a DIG would leave the Ninth Circuit ruling-and its reasoning-intact as the law of the Western United States, something a large number of Justices may be uncomfortable about.  Also, if the Court were going to DIG the case, it might have announced that decision before now.  So I place the odds of a DIG at something below 50%.

The Standing Route

That brings us to an approach I have been arguing for years is the best way to go-a ruling that Proposition 8's sponsors lack standing in federal court to defend the initiative, even though the elected officials normally counted on to defend (the Attorney General and the Governor) have declined to do so.  I think this is the most likely of the various possible outcomes (perhaps more likely than all the others combined) because it has many virtues.

Such a ruling would allow the Court to avoid speaking to the merits of the same-sex marriage dispute, but would also erase the Ninth Circuit's opinion.  A ruling on standing would-in the end-most likely result in Proposition 8's demise.  But, importantly, under this scenario, same-sex marriage would likely come about in California not from unelected federal judges' contested views of the Constitution, but rather from the actions of elected (and accountable) officials in California (the Attorney General and Governor) whose failure to defend the measure will ultimately bring it down.

A standing ruling would more than just prudent; as I have argued, I think it would be justified by the principles of standing law itself, and would resolve an important and open question within the doctrine of standing.  So a ruling that the Proposition 8 proponents lack standing should be seen not an unprincipled dodge, but rather as a legally justified and eminently sensible course of action.

Things to Look for if the Court Rejects the Proponents' Standing

If the Court does pursue this avenue, here are the two things to look for/focus on:

First, as for same-sex marriage in California, we should examine the ruling carefully to see what guidance the Court gives to the lower courts on remand.  Everyone agrees that the Ninth Circuit opinion would be vacated (undone), and that the two named-plaintiff couples who sued should get their licenses.  But how and why they get their licenses will be important, and will affect whether other same-sex couples in the State should get licenses right away too, or instead will have to wait for future legal or political developments.  Key to this question will be what, if anything, the Court says about trial Judge Vaughn Walker's judgment striking down Proposition 8 that he issued after the high-profile trial he oversaw.  We are not talking here just about the scope of Judge Walker's injunctive remedy against State officials, but whether the judgment in favor of the plaintiffs itself has to be erased and re-sought (in a different form) by the plaintiffs.  I have argued that Judge Walker's judgment probably should be vacated (and language near the end of the Supreme Court's opinion in Karcher v. May seems to support my argument), but we need to see whether any, or a majority, of the Justices speak directly to this issue and what they say.  The issue will undoubtedly be important for the timing of same-sex marriage in California, but it also has ramifications for standing doctrine more generally.  The question of what, precisely, follows from a finding that the only defendant who is actively defending lacks standing is an important one.

Second, we should examine what, if anything, the Court says about how initiatives can be defended when elected officials don't defend them, so that the initiative device itself is not diminished.  The best argument for initiative-proponent standing is that elected officials shouldn't be able to kill the very initiative device that is designed to be a check on their power.  There are ways for the Court to ensure that initiatives can be defended even if the Proposition 8 proponents lack standing-e.g., voters can deputize initiative sponsors explicitly and provide a framework for their authority to represent the people  (in a way that Proposition 8 voters did not)-but the question is whether the Court will see and discuss them.

 

April 12, 2013

Precisely What Will, or Should, Happen to Same-Sex Marriage in California if the Supreme Court Finds in Hollingsworth v. Perry That the Proposition 8 Sponsors Lack Standing? Part One in a Two-Part Series of Columns

Cross-posted from Justia's Verdict.

No one knows for sure what the Supreme Court is going to do with Hollingsworth v. Perry, the case (argued late last month) in which two same-sex couples sued in federal court to invalidate California’s Proposition 8, a voter-adopted state constitutional ban on gay marriage. But many—myself included—think that, among the various scenarios, the most probable outcome (and one that is perhaps more likely than not) is that a majority of Justices will dispose of the case by finding that the Proposition 8 sponsors (also known as the official “proponents” of the measure), the only ones who defended against the challenge, do not enjoy standing in federal court to speak on behalf of the State. If the sponsors lack standing, there is no valid “case” or “controversy” (terms used in Article III of the U.S. Constitution) in which the Supreme Court could resolve the merits of the plaintiffs’ equal protection and due process challenges.

As I have explained more fully in a number of writings going back a few years (including this one), my reason for doubting the sponsors’ standing—and it differs somewhat from the reasons argued in the amicus brief filed by Professor and former Acting Solicitor General Walter Dellinger, in which he also concludes that the Proposition 8 sponsors lack standing—is that when voters in California passed Proposition 8 in 2008, they could not have in any way be said to have knowingly appointed the sponsors as their agents to represent the State in the event that the Attorney General and Governor fail (as they did, in fact, fail) to defend the enactment if and when it was challenged in federal court.

The Consequences of a Denial of Standing to the Proposition 8 Sponsors: Common Ground and Divergent Opinions

But if the Court finds no sponsor standing, what happens next? There seem to be a number of answers that have been offered by various talking heads. In the space below, the first of a two-part series of columns, I explain, albeit in necessarily abbreviated terms, what I think should and might happen.

For starters, if sponsor standing is found to be lacking, everyone agrees (or certainly ought to agree) that the Ninth Circuit opinion invalidating Proposition 8 on the merits and creating law of the Ninth Circuit that could conceivably affect other states and also other issues in the Circuit would be vacated, that is, figuratively erased. Beyond that, there is also broad agreement that the two named same-sex couples in the Hollingsworth case who sought marriage licenses from the county clerks in Alameda and Los Angeles counties, respectively, should get their licenses. But exactly why and how these two named couples would get the relief they seek is where commentators seem to diverge.

My own view is that if the Court finds that the sponsors lack standing to defend Proposition 8, then after the Ninth Circuit ruling is vacated, the case should be sent back (in legal parlance, remanded) to the district court and at that point, the district court order—invalidating Proposition 8 and imposing an injunction against the named defendants—that was issued after Judge Vaughn Walker’s famous trial should also be vacated. The named plaintiffs would then seek and obtain a victory through a device known as a “default judgment.” A default judgment is what plaintiffs who have a right to sue (and the plaintiff same-sex couples here clearly did have such a right) get when the only valid defendants—by hypothesis here, the Attorney General and the Governor—“fail to defend.” To those who think Judge Walker’s order and injunction that he already issued on the basis of the trial he conducted should remain intact, I ask: If Article III standing means anything, how can a trial in which there were valid Article III parties (that is, parties with standing) on only one side of the “v.” resolve the merits of a case?

Why it Matters Whether a Default Judgment is Appropriate

If the named plaintiffs should get their licenses either way, a reader might ask, why does it matter whether we go the default judgment route, rather than simply leaving Judge Walker’s order in place? There are a few reasons. First, plaintiffs must request a default judgment, and as far as I have been able to discern at this point (the record is quite voluminous), no request or motion for entry of a default judgment was made in the district court. (The fact that no one appears to have made any such request is a bit odd, since Judge Walker himself seemed to doubt the sponsors’ Article III standing even as he allowed them to intervene as parties in the case. Given Judge Walker’s doubt about sponsor standing, the plaintiffs should have been asking themselves whether they even needed a trial to occur in order to prevail. But it also may be that plaintiffs and their counsel wanted a high-visibility trial for reasons that go beyond procuring justice for the named plaintiffs themselves.) So, to respect legal niceties, plaintiffs should have to go back and seek the default judgment to which they are entitled.

Second, legal niceties matter here because the scope of the injunction (the judicial command) that Judge Walker issued might have been informed by the trial that he (wrongly) held. Judge Walker issued an injunction that, by its straightforward terms, tells the defendants (the Governor, the Attorney General, and the County Clerks in LA and Alameda counties) not only that the named plaintiffs can be married, but also that they (the defendants) are judicially prohibited from applying Proposition 8 to anyone else.

As Professor Marty Lederman and I and others have pointed out, under the law of the Ninth Circuit (and perhaps also that of the Supreme Court), a district judge has no power, outside of a class action setting, to order relief that goes beyond protecting the named plaintiffs to also protect other would-be plaintiffs, unless full relief cannot be given to the named plaintiffs without also necessarily regulating the defendants’ interactions with other persons. In the present setting, full relief (i.e., marriage licenses) can be given to the named plaintiffs without ordering the defendants to give licenses to anyone else.

Some have argued that providing full relief to the named plaintiffs requires allowing all same-sex couples in the state to marry, because absent such broad access to same-sex marriage, the named plaintiffs’ marriages would continue to be subject to stigma. But I don’t think that this stigma argument works, because if it did, then same-sex couples who were already married in California in the summer of 2008 (during the window before Proposition 8 was passed) would have standing in federal court to challenge Proposition 8 on the theory that their marriages, which were not invalidated by Proposition 8, are nonetheless stigmatized unless other same-sex couples can marry too. And I don’t think that argument would fly.

As Professor Lederman has suggested, Judge Walker’s injunction was seemingly overly broad even assuming that the trial was properly held, and Professor Lederman argues that the way to cure this mistake is to construe the injunction narrowly to apply only to the named plaintiffs, since any injunction broader than that would be impermissible. Technically, because the words used in Judge Walker’s injunction (and his subsequent denial of a “stay,” or a hold, on his injunction) do not explicitly refer to other same-sex couples beyond the named plaintiffs, we might be able to do what Professor Lederman suggests. But such a reading of the injunction’s plain words seems strained and surely not reflective of Judge Walker’s intent. Under my approach, no artificial construction of Judge Walker’s order is required, since I think the trial never should have taken place, and plaintiffs need to go back and make a request for a default judgment, after which the judge (Walker’s replacement, since he has retired) can enter a properly limited injunction. And the appropriateness of a narrow injunction is easier to see after a default judgment than after a trial on the merits. (As an aside, I do note that after a request for a default is made, a judge can hold a hearing if needed, but I’m not sure that one would be needed here, and I’m certainly not sure that such a hearing would look anything like Walker’s trial.)

Is the Scope of the Trial Court Injunction Appropriate for the Supreme Court to Discuss?

Professor Dellinger, for his part, says the scope of the injunction isn’t validly before the Supreme Court unless and until some valid litigant (i.e., not the sponsors, but rather a valid representative of the State of California) appeals it. I disagree with this position based on the analysis I’ve just discussed: The impropriety of the trial itself and the judgment to which it led is certainly something that the district court can and should consider on remand if the Supreme Court finds that the sponsors lack Article III standing, and the Supreme Court is well within its authority to give such guidance to the lower courts about what should happen on remand. But Professor Dellinger and I may have an even deeper divergence of opinion. Professor Dellinger argues that there is a standing problem in the Hollinger case because the sponsors lack standing, and they are the ones who have tried to invoke the federal court at the Ninth Circuit and Supreme Court levels (having lost in each of the lower courts.) By contrast, the plaintiffs, who invoked the power of the district court, clearly do have standing, so the district court had a case or controversy before it.

This reasoning is to my mind only partially correct. The district court did have a case or controversy before it for the limited purpose of granting a default judgment, but not for purposes of holding a trial to adjudicate the merits of the plaintiffs’ claims. There is always a case or controversy (assuming plaintiffs have standing, and are suing under a federal claim) for purposes of issuing a default judgment; the government or any other proper defendant cannot defeat potentially valid claims by simply not defending against them. But once the only proper defendants decline to defend, the district court does not have Article III power to do any more. And it doesn’t matter who was invoking the power of the federal court.

To see this, imagine that the plaintiffs had lost the trial, and had then appealed to the Ninth Circuit, lost on the merits there, and then sought review in the Supreme Court. In that hypothetical, the party invoking the jurisdiction of each level of the federal judiciary—the same-sex couple plaintiffs—would clearly have standing. But if the only persons defending were sponsors who lack Article III standing, neither the Ninth Circuit nor the Supreme Court could, in my view, rule on the merits. (Indeed, when the Supreme Court began its discussion of whether initiative sponsors lack Article III standing in in the 1997 case of Arizonans for Official English v. Arizona, the Court observed that “[s]tanding to sue or defend is an aspect of the case or controversy requirement,” not that standing to invoke the federal courts is an aspect of the case or controversy requirement.)

It seems to me that, notwithstanding some sloppiness here and there by the Court over the years (and no one can draw a straight line through everything the Court has said or done in this realm), if standing doctrine is to have any integrity, what matters for purposes of adjudication on the merits is that there be, at the time the merits adjudication is performed, valid, adverse, Article III-qualified parties on both sides of the “v.,” not just on the side of the “v.” that has invoked the federal judiciary.

In Part Two of this series (currently scheduled to run on this site on April 26, 2013), I will examine what will happen if Judge Walker’s ruling is left intact and is read broadly, rather than narrowly, to apply to couples other than the named plaintiffs. I will also consider what things might look like if, in response to a Supreme Court ruling that the sponsors lack standing, either county clerks themselves or the Governor and Attorney General decide on their own to stop implementing Proposition 8, whether or not any court order tells them they must do that.

March 30, 2013

Why The U.S. Supreme Court Should Not Fear That Denying the Proposition 8 Sponsors Federal Standing Will Weaken The Initiative Device (And a Few Other Thoughts on the Oral Argument in Perry v. Hollingsworth)

In the space below, I offer some quick analysis of the U.S. Supreme Court's oral argument on Tuesday in Perry v. Hollingsworth, the case in which same-sex couples challenge California's ban on same-sex marriage, the voter-adopted Proposition 8.

The Court Was Presented With a False Dilemma Concerning Sponsor Standing

Over the last couple of years, I have written in a number of essays (including this one) that I think that the Proposition 8 sponsors should not enjoy standing in federal court to defend the measure, even though the California Attorney General and Governor have failed to defend.  As I have explained, the Proposition 8 sponsors were never elected nor appointed by the voters, and are not accountable to them.  For these and various other related reasons, the sponsors are not appropriate representatives for the State of California.  In short, initiative proponents who are not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments, and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time when litigation is conducted.

At Tuesday's oral argument, many of the Justices (up to five or more, and especially the "liberal" Justices Ginsburg and Kagan) seemed to understand these problems, and so there may be a majority of the Court for the proposition that Article III's "case or controversy" requirement is not satisfied in the present situation.  Even if fewer than five Justices find sponsor standing to be a problem, the sponsor standing issue could drive the result of the case.  Imagine a split in which three Justices want to reverse the Ninth Circuit on the merits, three want to affirm on the merits, and three want to vacate the lower court ruling for lack of standing.  Under such a scenario, the three Justices who would prefer to reverse on the merits might nonetheless join the three who want to vacate for lack of standing, simply to erase a problematic Ninth Circuit ruling that they all feel should not remain as the law of the Ninth Circuit.

The best counterargument (and it came up at oral argument), in favor of sponsor standing, is that if sponsors lack standing to defend initiatives, then elected officials can wrongly "kill" initiatives by simply not defending the measures when the initiatives are challenged.  This is especially problematic because the initiative device (in those states that have it) is derived from a concern that elected public officials sometimes do not act in ways that are faithful to the people's interests and desires, such that direct democracy is needed.  And while most initiatives are a response to inaction (or unpopular action) by the legislative branch, there is no reason to think that the distrust of elected officials that is represented by the initiative mechanism does not also carry over to elected executive officials like Governors and Attorneys General. (Consider, for example, an initiative limiting the terms of all elected officials, including executive officials. An Attorney General's self-serving decision not to defend such a measure would rightly be viewed with great public outrage.)

So, a few Justices (perhaps especially Justice Sotomayor) worried aloud, if sponsors are not allowed to defend initiatives in federal court, then the initiative device could be gutted.  But this framing of the issue ignores a key middle ground position:  that state law can authorize sponsors to defend initiatives (in a way that federal courts will respect and accept), but the authorization has to be done carefully and in a way the voters can see.

In fashioning a workable balance between the competing concerns presented by initiative-sponsor standing, the federal courts should recognize the possibility of sponsor standing, but only when the conferral of the power to sponsors to defend an initiative is clearly provided for in state law, and addresses some of the theoretical and logistical problems raised by sponsor standing. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, sponsor standing seem inadequate to confer notice on the voters since, as the U.S. Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative (creating authorities and fiduciary duties that the proponent must honor) as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to  address, among other things:  (1) precisely who within the proponent organization(s) is entitled to make key litigation decisions and concessions; (2) how long the sponsor's power to defend lasts; (3) the question of attorneys' fee liability to be satisfied by public fisc if the defense fails; and (4)   what the relative authority of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative sponsors.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision by the California Supreme Court in 2011, perhaps going forward voters in California should know, and take account of, the fact that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court.  (In this regard, I note that the California Supreme Court ruling might not suffice even going forward, because it did not answer some of the key logistical questions about the length of time a sponsor has power to defend the initiative, etc.)   In any event, because such state law clarity was certainly not in place when Proposition 8 itself was passed in 2008 (and I note here that it was passed by a slim margin), the U.S. Supreme Court could easily conclude that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.  The voters of California in 2008 cannot be said to have appointed persons whom the voters did not even know were being appointed at that time.

The Consequences of a Finding That the Proposition 8 Sponsors Lack Federal Standing

If the Court does dispense with Perry on standing grounds, the Ninth Circuit ruling would be vacated (erased), and the case would go back to the trial court.  The named plaintiffs would (and should) get their marriage licenses (because certainly the government must give a plaintiff the relief she seeks when it defaults, that is, refuses to defend against her challenge).  But the extent to which other Californians would be free from Proposition 8-and when that might happen-depends upon many complexities, including the Governor's reaction to a ruling based on lack of standing, a potential state-wide class action lawsuit, and also the wild-card possibility that certain elected county clerks (these might be the "other people" to whom Chief Justice Roberts referred during oral argument) may be granted standing to defend Proposition 8 if it continues to be enforced in the State yet not defended by the Attorney General and Governor.  The procedural entailments of a Supreme Court ruling on standing grounds are themselves very complicated, and the only reason that they weren't explored much more at oral argument this week was, I expect, the constraint of the limited argument time.

What About the Option of Dismissing the Case Altogether At the Supreme Court?

If the Court doesn't want to reach the merits of the Proposition 8 challenge, it has another option as well-to dismiss the writ of certiorari as "improvidently granted."  Under this approach, the high Court would simply decide, upon closer inspection, that it was a mistake to grant review in the case in the first place, and undo that grant.

A dismissal is possible, but this course of action would need to overcome a few hurdles.  First, ordinarily speaking, for the Court to dismiss a case as improvidently granted (or, to "DIG" it, in Supreme Court parlance), at least six Justices would have to agree.  If four Justices want to keep the case, they typically can, since those same four Justices were all who were needed to grant review in the first place (pursuant to something known as the "Rule of Four.")  To preserve the integrity of the Rule of Four, the Court has traditionally taken the view that at least one of the Justices who voted to grant review (and more than one, if there were more than four votes to grant) would have to be among the majority who want to DIG the case.  And at oral argument, Justice Scalia seemed to believe he spoke for at least four of the Justices who voted to grant review when he suggested that the grant was water under the bridge (his actual words were that "we have crossed that river.")  So unless Justice Kennedy and Chief Justice Roberts both want to DIG the case (assuming one or both initially voted to grant review), mustering a DIG would seem to be hard.

Another reason a DIG may be difficult is that, unlike a ruling that the initiative sponsors lack standing, a DIG would leave the Ninth's Circuit's ruling intact.  The Ninth Circuit ruled that Proposition 8 was constitutionally irrational because: (1) it repealed an existing state-law right to same-sex marriage (rather than simply declined to recognize one); and (2) California had done so much to equalize the treatment of gay and straight couples that it no longer had any good reason for not extending the marriage label to gay couples.  None of the Justices seemed to think that this reasoning made sense.  (Justice Kennedy called it "very odd," and Justice Alito asked if the plaintiff's lawyer was "serious" about this argument.  Even Justice Breyer voiced concern over the perverse incentives it creates.)  Because the Ninth Circuit's ruling could have non-trivial spillover effects in other Western states outside of California and/or externality effects on rights other than the right to marry, many Justices may not want to leave it on the books.

My focus on the procedural issues in Perry in no way suggests the merits discussion at oral argument was unimportant or uninteresting.  But space constraints require that I defer them-and a discussion of the oral argument in the Defense of Marriage Act (DOMA) case, Windsor v. U.S.-until future writings.

Cross-posted from Justia's Verdict.

August 7, 2012

OUT and ABOUT: The LGBT Experience in the Legal Profession

ABA SOGI Commission

For the past three years, I have had the pleasure and the honor of serving as the Chair of the ABA Commission on Sexual Orientation and Gender Identity (SOGI Commission). The SOGI Commission was created in August 2007 by approval of the Board of Governors of the ABA. Its mission is to promote full and equal participation in the legal profession and the justice system without regard to sexual orientation or gender identity. The SOGI Commission seeks to further this mission through education efforts, policy development, outreach and relationship building, and other activities.

The SOGI Commission has accomplished much in its short history. For example, the SOGI Commission worked with other ABA entities and leaders to enact ABA policy supporting marriage equality for same-sex couples. This policy recommendation was overwhelmingly approved by the ABA House of Delegates in August 2010 with the support of many ABA leaders, including many Past Presidents of the ABA.

With the assistance of the SOGI Commission, the ABA submitted letters to Congress and to the Department of Defense in April 2010 urging the repeal of Don't Ask, Don't Tell. Congress approved the repeal of Don't Ask, Don't Tell about six months later. More recently, the Commission helped draft a letter to Congress urging the enactment of the Employment Nondiscrimination Act (ENDA).

More information about the SOGI Commission and its work is available in our Annual Report.

Out and About Publication

Currently, the SOGI Commission is working together with the National LGBT Bar Association to produce an anthology. The purpose of this anthology is to share the experiences of lesbian, gay, bisexual, and transgender (LGBT) attorneys, academics, and jurists in the legal profession, through their own words. We see this publication as a means to educate the legal profession and the general public about this diverse group, its contributions, and its struggles. The book will also serve as an inspiration to other LGBT people in the profession and to LGBT law students.

Currently, the SOGI Commission is in the process of identifying potential contributors for the publication. The Commission seeks to make the publication as diverse as possible in order to represent the breadth of LGBT persons in all aspects of the profession. Moreover, our hope is for the stories to be relevant for a multitude of readers, whether or not they identify as LGBT.

For more information about how to contribute, please visit the SOGI Commission's website.

June 14, 2012

Defining Parenthood: Astrue v. Capato and Same-Sex Marriage

Cross-posted from JURIST.

Who is a parent? Does biology necessarily and in all circumstances make one a parent? Are biological parents and their children "at the core" of all federal benefits programs? Although the case appeared to present a rather technical statutory interpretation question, these broader questions lurked in the background of the recent Social Security benefits case decided by the US Supreme Court — Astrue v. Capato.

Overview of the Case

The case concerned the right of twin children to recover children's social security survivor benefits. The children were born to Karen Capato in September 2003. Approximately four years earlier, Karen married Robert Capato. Shortly after getting married, Robert was diagnosed with cancer and was informed that his cancer treatments might leave him infertile. Before beginning treatment, Robert deposited his semen with a sperm bank to preserve the possibility of having children with Karen who would be biologically connected to both of them. The couple ended up having one child through sexual intercourse in 2001, but this child's eligibility for benefits was not at issue in the case. Unfortunately, Robert died in 2001. After Robert's death, Karen began treatment for in vitro fertilization (IVF) using Robert's semen and her ova. IVF requires the extraction of a woman's ova from her body, which are then fertilized with sperm outside the woman's body. The fertilized ova are then transferred to a woman for gestation. Karen eventually gave birth to twin children in September 2003, 18 months after Robert's death.

Shortly after the twins were born, Karen sought Social Security survivor benefits on their behalf. These requests were denied by the Social Security Administration (SSA). This denial was affirmed by an administrative law judge and then by a federal district judge on the ground that the children were not eligible to recover under any of the definitions of "child" included in the Social Security Act ("the Act"). The US Court of Appeals for the Third Circuit reversed, holding that even though the children did not qualify under any of the explicit definitions laid out in the Act, the twins nonetheless should be considered eligible children because they were indisputably the biological children of a "deceased wage earner and his widow."

Although the mother was likely only thinking about these particular children's rights to access this particular benefits program and likely was not intending to make broader pronouncements about family law generally, the mother's argument rested on the underlying premise that biologically connected children are the "principal beneficiaries" of this federal benefits program (and presumably others).

Based on the paucity of commentary, it seems that few Supreme Court watchers or legal commentators followed the case. It appeared to present a rather narrow statutory interpretation question about the eligibility of a small group of children (children conceived through the use of assisted reproductive technology after the death of the sperm provider) to a particular federal benefit. I argue, however, that the Court's decision in this case may provide useful insights to how the Court may respond to some much broader and controversial arguments currently being asserted in the various same-sex marriage cases percolating through the court system.

The Social Security Act

The Social Security Act was enacted in 1935 to help people — particularly older people — deal with the extremely high unemployment and poverty rates seen during the Great Depression. The Act included four basic programs: a forced retirement plan for workers; a needs-based assistance program for low-income, older people; an unemployment compensation program; and a program designed to provide assistance to poor mothers and their children.

In 1939, Congress expanded the forced retirement program — Title II — to provide benefits not just to the workers, but to their dependents. This expansion "transformed Social Security from a retirement program for workers into a family-based economic security program." As President Franklin Roosevelt stated in his 1939 signing statement: "In addition to the worker himself, millions of widows and orphans will now be afforded some degree of protection in the event of his death whether before or after his retirement."

Children's Eligibility under the SSA

Pursuant to the Act, as amended in 1965, stepchildren, adopted children, and people considered "children" under the Act are entitled to child's social security survivor benefits under certain specified conditions, pursuant to 42 USC § 416(e). The Act provides several ways a person who is not a stepchild or an adopted child can establish that he or she is considered a "child" under the Act. A child is considered a child for purposes of child's social security survivor benefits if the person would be able to inherit intestate through the wage earner as a child or with the same status as a child of the person under 42 USC § 416(h)(2)(A). Alternatively, under 42 USC §416(h)(2)(B) the child is considered a child if: "[The] insured individual and the mother or father ... went through a marriage ceremony resulting in a purported marriage between them which, but for a legal impediment ... would have been a valid marriage." Finally, even if neither of the first two methods apply, one can nonetheless establish that one is a child if the insured individual "acknowledged in writing that the applicant is his son or daughter," "had been decreed by a court to be the mother or father of the applicant" or "had been ordered by a court to contribute to the support of the applicant because the applicant was his son or daughter" according to 42 USC §416(h)(3)(C).

Karen Capato did not argue that the twins would qualify under any of the three statutory methods outlined above. Instead, she argued that the twins did not need to fulfill any of those requirements because they were the biological offspring of two persons who had been married to each other. Such children, Karen asserted, are in a class of their own and are automatically entitled to social security children's survivor benefits. In her brief to the Supreme Court she argued: "Congress regarded such children as the principal beneficiaries of the Social Security survivorship program; indeed, Congress saw that principle as so obvious that it did not require many words to establish."

The Court's Holding

The Supreme Court swiftly and unanimously rejected the mother's arguments in an opinion authored by Associate Justice Ruth Bader Ginsburg. Nothing, Ginsburg explained, indicates that "Congress intended 'biological' parent to be prerequisite to 'child' status under" the Act. To the contrary, a review of historical context as well as state parentage law reveals that that federal government did not intend to privilege or especially protect the biological children of married couples. First, quoting the Administration's brief, Ginsburg explained that "'[i]n 1939, there was no such thing as a scientifically proven biological relationship between a child and a father, which is ... part of the reason the word 'biological' appears nowhere in the Act.'" Second, Ginsburg astutely noted that under state parentage law, a person who is biologically connected to a child is not necessarily the child's legal parent. A biological parent is not the legal parent of a child who has been adopted by another family. In addition, in many states a man who provides sperm to inseminate a woman other than his wife is not the resulting child's legal parent. Although Ginsburg did not develop this point in her opinion, the opposite is also true. There are many circumstances under which a person who is not biologically connected to a child is the child's legal parent. In all 50 states, husbands are presumed to be the legal parents of children born to their wives, even if they are not genetically connected to the child. In many states, this presumption is not rebutted by evidence that the husband is not the biological father. In the context of non-marital children, there are a number of circumstances under which an unmarried man may be considered a child's legal parent despite his lack of genetic connection to the child. This may be true, for example, under a so-called "holding out" provision, or if the man and the child's mother properly complete and do not rescind a voluntary acknowledgement of paternity.

Rather than being targeted only or especially towards biological children, Ginsburg explained, the Act was intended to benefit and protect children who were dependent upon members of a wage earning family. The aim of the Act, Ginsburg wrote, was "to provide dependent members of a wage earner's family with protections against the hardship occasioned by the law of the insured's earnings." From the Act's inception, Congress explicitly recognized that a child may be dependent upon a wage earner even if the child is not genetically connected to that wage earner. This is evidenced by, among other things, the inclusion (since the 1939 amendments adding benefits for dependents) of stepchildren and adopted children under the Act's auspices.

In the end, Ginsburg rejected Karen Capato's argument that the biological children of persons who were once married to each other fall into a class of specially protected children. Instead, under a reasonable reading of the statute — one that is fully consistent with the Act's purpose — Ginsburg held that to be qualified all children must establish eligibility under one of the three methods detailed above in the statutory scheme.

What Does All of this Have to do with Same-sex Marriage?

So, what does any of this have to do with same-sex marriage? At first blush, one may think that it has nothing to do with same-sex marriage. But, upon closer analysis, one can see that it relates quite directly to one of the primary arguments that opponents have used to justify discriminatory marriage laws. Specifically, marriage equality opponents continue to argue that states can permissibly limit marriage to opposite-sex couples because opposite-sex couples are the only ones who (potentially) can procreate without assistance and, sometimes, this procreation occurs by accident. States, the argument continues, have a greater interest in protecting — through access to the institution of marriage — those couples who have the potential to procreate by accident.

A variation of this argument has also been put forward by the members of the US House of Representatives in the recent litigation challenging Section 3 of the federal Defense of Marriage Act (DOMA). Section 3 provides that, for all federal purposes, marriage means the union of one man and one woman. The practical effect of Section 3 is that even validly married same-sex couples are denied all of the estimated [PDF] 1,138 federal rights, benefits, and protections that are extended to heterosexual spouses by virtue of their marital status. In their brief [PDF] defending the constitutionality of Section 3, various members of the House of Representatives (represented by former Solicitor General Paul Clement) argued that Congress could rationally decide to exclude all validly married same-sex spouses from access to all of the federal spousal benefits and protections based on "basic biological differences between opposite-sex sexual relationships and other relationships" (emphasis in original). The "basic biological difference," the brief explains, is that opposite-sex couples have the potential to create children, through sexual intercourse, who are biologically related to both of them, while same-sex couples do not.

This argument, however, relies on the same faulty logic as the argument put forth by Karen Capato. In deciding how to distribute benefits, the federal government does not condition, premise, or privilege eligibility based on a parent's biological connection (or lack thereof) with his or her child. Instead, the vast majority of federal benefits programs related to children and parents are designed to help families care for children, particularly in times of crisis. As Ginsburg explains with respect to the SSA, outside of these recent arguments regarding DOMA, nothing in federal law indicates that Congress intended that biological children of married spouses were intended to be the special or principal beneficiaries of these federal programs.

February 16, 2012

Revisiting Standing: Proposition 8 in the Ninth Circuit

(Cross-posted from Jurist.com)

JURIST Columnist Vikram Amar, writing the inaugural edition of a column authored by the faculty of the University of California, Davis School of Law, says that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans...

Detractors likely see last week's ruling striking down California's ban on same-sex marriage, Proposition 8, as a result-oriented decision calculated to reinstate same-sex marriage in the Golden State and at the same time discourage Supreme Court review on account of the California-specific reasoning underlying the opinion.

It is worth noting that Judge Reinhardt, the opinion's author, would also have been accused of activism had he written a broader ruling that called into question other state bans on same-sex marriage as well. Still, Reinhardt's effort does suffer from significant logical and doctrinal problems. He attempted to wrap himself in the cloak of Romer v. Evans, the famous 1996 Supreme Court ruling in which Justice Kennedy wrote for the majority to invalidate a Colorado initiative that withdrew, across the board, protection from discrimination on the basis of sexual orientation for all persons of gay or bisexual orientation while leaving in place such anti-discrimination protection for people of heterosexual orientation. Reinhardt also relied on two features of Proposition 8 that he said doomed it under Romer and other cases. First, California repealed an existing right to same-sex marriage; California did not simply choose not to recognize one in the first place (as in other states). Second, California's repeal of the marriage label was irrationally narrow, insofar as it left intact all the tangible benefits of same-sex marriage for gay couples.

The big problem is that neither of these features of Proposition 8 brings the case within the scope of Romer. In Romer, nothing seemed to turn on the fact that the Colorado law in question, Amendment 2, had taken the form of a repeal. Imagine there were no anti-discrimination laws relating to sexual orientation in Colorado at all. Colorado then creates such laws in something it calls "Amendment 2(a)," but provides therein that "none of these newly created rights concerning sexual orientation discrimination shall be enjoyed by persons who are of gay orientation or lifestyle." I have no doubt the Court would have struck this down just as it did the law in Romer. In fact, Justice Kennedy in Romer actually used "withheld" instead of "repealed" in one place, to describe Amendment 2. So Romer is not about impermissible repeal, but rather about unfair exclusion of a group from a benefit.

Part of what made the initiative in Romer so unfair, the Court said, was its sweeping breadth. So the second argument Judge Reinhardt makes for striking down Proposition 8 - its narrowness - not only finds no support in Romer, this argument is actually undermined by the reasoning of Romer.

There are other, related, problems with Judge Reinhardt's opinion. His finding that Proposition 8 cannot rationally be thought to reflect California's desire to proceed cautiously with major social change because the initiative was styled as a "permanent" cessation of, rather than a moratorium on, same-sex marriage is quite unconvincing. A cessation is always no more than an indefinite break, insofar as the people of California remain free to repeal any state law in the future, even Proposition 8 itself. Indeed, can anyone see last week's decision coming out differently if Proposition 8 had been written to require all state officials to implement "an indefinite moratorium, until further action from the people, on all same-sex marriages, so that Californians may safeguard their vision of the institution of marriage in light of the way marriage has developed throughout history and across the nation"?

The analytic moves Reinhardt makes create problematic incentives for states. If a state chooses to experiment by recognizing same-sex marriage (or any other right not required by the federal Constitution), it can now reasonably worry that repeal will be difficult. If a state confers most of the tangible benefits of marriage on same-sex couples, it can now reasonably worry that its failure to extend the marriage label will be struck down as irrational.

Defenders of Judge Reinhardt might suggest that he was in a bind. Proposition 8, they may say, was a measure driven by hostility towards gays, but direct evidence of such animus on the part of decision makers (in this case voters) is always hard to adduce. And, they would add, the Supreme Court has itself (in cases like Romer) struck down anti-gay measures using inadequately explained and/or logically unconvincing reasoning. Constitutional law, they might observe, is always choppy in a period of transition, during which courts are working their way through what they think is the constitutionally right answer but are restrained for prudential reasons from articulating at the outset a full-throated explanation of the constitutional principles involved. Given pragmatic constraints, Reinhardt defenders would suggest, the judge could not easily have held that equal protection principles should make us skeptical of bans on same-sex marriage everywhere, and that such bans cannot survive the intermediate or strict scrutiny they warrant. Such an intellectually honest opinion would have forced the Supreme Court to decide a major issue that the Court could think will benefit from percolation in the states and the lower courts for a while. On this view, Judge Reinhardt, by ruling on California-specific grounds, reached the constitutionally just result while doing the Supreme Court (and Anthony Kennedy in particular) a favor by giving the justices a basis on which they can stay out of this tangle, for now.

However, even if someone were to agree with the premises of Judge Reinhardt's defenders (and I take no position on that here), I think his opinion is still open to question because there was a better path to the same endpoint. Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt's approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Perry and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt's approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt's California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt's curious reasoning.

The only remaining question is whether the Ninth Circuit's (or the Supreme Court's, for that matter) hands are tied with respect to initiative sponsor standing because of the California Supreme Court opinion last November indicating that proponents have standing to assert the interests of the state in state court. Simply put, the California court's ruling does not resolve the standing question in federal court. Certainly if California courts were to hold that every voter has standing to assert the interests of the state electorate to defend an initiative when statewide elected officials decline, such a determination would and could not create citizen standing in federal court.

Instead, as the Supreme Court has made clear in cases discussing jus tertii (or third-party) standing, when someone is permitted standing in order to assert the individual or collective rights of another individual or group, the person seeking standing ideally would have a special relationship with the right holder(s) to satisfy the Court's prudential concerns that there will be adequate representation. With regard to elected officials representing the interests of the voters, tradition and the fact that the officials are elected or appointed create that relationship of accountability and generate good representation. But with respect to initiative proponents who were not known or picked by the voters when the electorate adopted an initiative, there is no process (and no real discussion by the California Supreme Court) that explains why the proponents are accountable to and thus can be representatives for the voters. In a 1997 opinion, the Supreme Court expressed "grave doubts" about initiative proponent standing and observed:

[Elected] [s]tate legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State's interests. [But initiative proponents] are not elected representatives, and we are aware of no Arizona law appointing initiative proponents as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State. Nor has this Court ever identified initiative proponents as [constitutionally] qualified defenders of the measures they advocated.

The California Supreme court has told us that California law authorizes proponents to represent the state in state court. Is that enough? I would argue not. Note that the Supreme Court pointed out at least two problems with proponent standing in Arizona - lack of state law authorization, and also the fact that proponents are not "elected representatives" or "appoint[ed] agents." The California court ruling may address the former, but does precious little to blunt the latter.

Why should lack of election or formal appointment as a state agent matter? Because Proposition 8 proponents were never actually chosen by the people, nor designated by any of California's elected representatives, to speak for the state's electorate. Of course, the measure that the proponents proposed was adopted, but that does not mean that the electorate decided - or intended - that these particular proponents ought to speak or act for the voters in any representative capacity.

In short, initiative proponents not picked by the voters may lack credibility, and may in fact be rogue actors whose current views, sentiments and desires bear little relation to those of the electorate that adopted the initiative in question, much less the electorate that exists at the time litigation is conducted.

In fashioning a workable balance between the competing concerns presented by initiative-proponent standing, the federal courts should recognize the possibility of proponent standing, but only when the conferral of power to defend on proponents is clearly provided for in state law. Such a rule gives voters adequate notice that when they adopt an initiative, they are in effect appointing certain persons to defend it in court.

Decisions issued in years past by the California courts that permit, but do not discuss, proponent standing seem inadequate to confer notice on the voters since, as the Supreme Court has recognized, rulings that tolerate but do not affirmatively discuss and affirm a court's jurisdiction over a matter are not entitled to any precedential weight. Instead, the appointment should be effected by a provision in a particular initiative (passed by the voters) that explicitly deputizes a particular proponent of that initiative as the party entrusted to defend the constitutionality of the law. It would be sensible for such explicit deputization to spell out who within the proponent organization is entitled to make key litigation decisions and concessions, and also what the relative power of the initiative proponent and the Attorney General/Governor should be when public officials may decide to defend the measure, but to defend it in ways that are different from the litigation strategy favored by the initiative proponents.

Or, the necessary appointment could take the form of a state statute or state supreme court opinion directly announcing clear standing rules for all initiatives from that point on. So, in light of the decision last November, perhaps voters in California should, going forward, know and factor in that when they approve an initiative, they are, in addition to adopting whatever policy is embodied in the initiative, effectively appointing certain persons to represent them in court. But because such state-law clarity was not in place when Proposition 8 itself was passed (and I note here that it was passed by a slim margin), I will not be surprised if the Supreme Court concludes that the requirements of federal standing are not necessarily met by the proponents in the Proposition 8 setting itself.

Denying them federal standing may have been (and may still be) the prudent thing to do.

Vikram Amar is the Associate Dean of Academic Affairs and a Professor of Law at the University of California, Davis School of Law. He writes, teaches and consults in the public law fields, especially constitutional law, civil procedure and remedies. He is a co-author of Constitutional Law: Cases and Materials, and he is a co-author on a number of volumes of the Wright & Miller Federal Practice and Procedure Treatise.

Suggested citation: Vikram Amar, Revisiting Standing: Proposition 8 in the Ninth Circuit, JURIST - Forum, Feb. 16, 2012, http://jurist.org/forum/2012/02/vikram-amar-marriage-standing.php.