Friday, June 28, 2013

Winning ugly: the Court's same-sex marriage rulings, Part II

In my post yesterday, I explained my view that the Supreme Court's decision this week in United States v. Windsor was an "ugly win" -- a victory for gay rights, but a victory that is heavily qualified and that came at the expense of good legal craft.  I also suggested that the ugliness of Windsor might have been by design and might even have been necessary.

Hollingsworth v. Perry was an ugly win too, probably for many of the same reasons, although Perry was in some respect both less ugly and less of a win than Windsor.  At issue in Perry was California's Proposition 8, a voter initiative that amended the state's constitution in 2008 to legally define marriage as a union between one man and one woman.  (California permits same-sex "domestic partnerships," which carry the same legal rights and obligations as marriage without the name.)  Same-sex couples wishing to marry in California sued the state in federal court, claiming that Prop. 8 violated both the equal-protection and due-process guarantees of the federal Constitution.  The district court ("district court" is the name for trial courts in the federal system) issued a sweeping opinion ruling for the plaintiffs, asserting that Prop. 8 should be subjected to strict scrutiny (for an overview of levels of scrutiny, see yesterday's post) and holding that the law failed to survive even the more-deferential rational-basis review.  On appeal to the Ninth Circuit, the Court of Appeals affirmed the district court's ruling, but on substantially narrower grounds, holding that because Prop. 8 deprived same-sex couples of a then-existing right to marry for no good reason, it could only have been motivated by animosity against homosexuals, which is not a legitimate state interest under the Romer decision (also discussed in yesterday's post).

We have a pretty good indication from Windsor that five current Justices (Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan) believe that laws prohibiting same-sex marriage violate the Constitution.  So it was well within the realm of possibility that a majority of the Court would rule against Prop. 8, either on the broad grounds employed by the district judge or, more likely, on the narrow basis relied upon by the Court of Appeals.  But of course that's not what happened.

Instead, three of the Court's center-left Justices (Ginsburg, Breyer, and Kagan) joined with two conservatives (Scalia and Chief Justice Roberts) in an opinion dismissing the appeal for lack of what lawyers call "standing," that is, capacity to pursue a claim or an appeal in federal court.  And while Roberts's opinion for the Court is a finer specimen of legal argument than Kennedy's in Windsor, it's hardly a Holmesian model of persuasion.

Article III of the Constitution gives the federal courts power to decide "cases" and "controversies," and the Court has long interpreted this language as implying limits on, among other things, the types of parties eligible to pursue claims or appeals in a federal court.  One such limit is that a party must be able to point to an actual or imminent "injury" or harm to herself that a federal court can prevent or remediate (the "personal injury" requirement).  A related limitation is that parties in federal court typically cannot assert the legal rights of others (the "third-party standing" prohibition).  In Perry, the California state officials normally charged with defending the state's laws in court -- its governor (Arnold Schwarzenegger when the suit was filed, Jerry Brown now) and its attorney general -- declined to argue on behalf of Prop. 8's constitutionality.  So the district court allowed a group of citizens who had sponsored the ballot initiative to intervene and defend the law in place of the state.  When the plaintiffs won in the district court, the Court of Appeals allowed these citizens (let's call them the "Proponents") to bring and litigate the appeal as well.

In his opinion for the Court in Perry, Chief Justice Roberts held that the Proponents lacked a sufficient personal injury to pursue the federal appeal.  It was the state itself, after all, not the private citizens that comprised the group of Proponents, that was directly harmed when the district court declared Prop. 8 unconstitutional.  So the Proponents lacked their own standing to appeal the district court's decision; and allowing them to appeal on behalf of the state would violate the prohibition on third-party standing.

Roberts's reasoning suffers from only two difficulties:  It makes little sense as a matter of logic, and it is hard to square with existing case law.  Let's start, as one often should (even in the law), with logic.  Unlike "natural" persons like you or me, governments (state or federal) cannot act by themselves; they can act only through some natural person or group of natural persons.  When a California statute is challenged in court, there is no physical entity called "the State of California" that can sign pleadings, file briefs, and sit at counsel table.  Rather, some person or persons authorized to do so must act on behalf of the state in litigation.  Every state has laws that designate who this person or persons should be; typically it is the state's attorney general.  But there is no reason to think the federal Constitution should dictate how state governments must make this choice.  If California wants to change its laws to allow its legislators (rather than its attorney general) to represent it in court, or to allow some group of private citizens to do so, or for that matter to be represented by Mr. Ed the talking horse, it's hard to see what Article III of the federal Constitution has to say on the matter.

Of course, a federal court might want to make sure that the party purporting to represent the state in its courtroom is in fact authorized to do so.  And while it seems reasonable to take for granted that a state's attorney general is so authorized, it seems less reasonable to assume the same about a group of private citizens like the Proponents.  As it happens, though the Court of Appeals in the Perry case had already confirmed the Proponents' authority to represent the state under California law.  As soon as the Proponents filed their notice of appeal, the Court of Appeals sent a formal request (known as a "certified question") to the California Supreme Court, the highest authority on matters of California state law, asking that court to declare whether the Proponents had the authority to litigate in favor of Prop. 8 on behalf of the state.  The California Supreme Court answered this question in the affirmative.  By the time the case reached the United States Supreme Court, then, there was no question whether the Proponents were authorized to represent the state as a matter of state law.  The California Supreme Court had said that they were, and the United States Supreme Court is supposed to be bound by rulings of a state's highest court regarding the laws of that state.

So, as a matter of logic, there was no reason to treat the Proponents differently from any other party the State of California might choose to designate as its representative in federal litigation.  Which brings us to the case law.  In a 1987 case, Karcher v. May, the Supreme Court had allowed members of the New Jersey state legislature to defend the constitutionality of a New Jersey statute that the governor and attorney general of New Jersey refused to defend.  How is Perry different from Karcher?  In his Perry opinion, Roberts suggests that the difference lay in the fact that the legislators in Karcher were government officials (albeit not the ones formally charged by New Jersey law with defending the state in court) while the Proponents in Perry were not.

But this, as lawyers sometimes say, is a distinction without a difference.  A litigant's status as a government official might, arguably, make that litigant more likely than a mere private citizen to act in the state's best interests.  The question for the Court in Perry, however, was not whether the Proponents would be effective representatives of the state; again, deciding who will represent it effectively in court is supposed to be the prerogative of the state itself.  The question, rather, was whether the party pursuing the appeal can claim a sufficient personal injury as a result of the trial court's decision.  And on this question there is no apparent distinction between the New Jersey legislators in Karcher and the Proponents in Perry.  Neither the New Jersey legislators nor the private-citizen Proponents suffered a direct personal injury as a result of the state law in question being declared unconstitutional; in both cases, the litigants' actual harms were merely ideological, a sort of psychological or emotional harm that flows from the knowledge that a statute one favors cannot be enforced.  Since the Court has often held that mere "ideological" harm is insufficient to support standing, the basis for the Karcher legislators' standing must have been the fact that they were authorized by state law to represent a party that clearly had suffered a cognizable injury, namely the state itself.  But this is true of the Proponents in Perry as well -- true, in any event, according to the California Supreme Court, whose interpretations of California law are supposed to be binding on federal courts, including the U.S. Supreme Court.

Roberts's attempt to distinguish Karcher, then, is unpersuasive.  And consider another precedent that Roberts doesn't even mention in his opinion -- the Windsor case, decided on the same day as Perry.  In that case the Court allowed members of Congress to litigate in defense of a federal statute despite the Attorney General's refusal to do so.  The Windsor Court acknowledged that these members of Congress themselves had not suffered a personal injury as a result of the lower courts' invalidation of DOMA, but it nonetheless allowed those members to represent the interests of a clearly injured party -- the U.S. government -- in federal court.  If the U.S. government can choose to allow members of Congress to defend its statutes when the Attorney General declines to defend them, why can't a state government choose to allow proponents of a ballot initiative to defend that initiative when the state's attorney general declines to defend it?  If anything, one would think the Court -- so concerned with "states' rights" in other contexts -- should show a greater deference to the choice of a state government than to that of the federal government in such circumstances.

If Roberts's opinion is so vulnerable, why did three pro-gay-rights Justices (Ginsburg, Breyer, and Kagan) join it?  Why didn't those Justices simply tackle the case on its merits, joining forces with the other center-left Justice (Sotomayor) and with Justice Kennedy, the opinion-writer in Windsor, to strike down Prop. 8?

One possibility is that Ginsburg, Breyer, and Kagan knew, or believed, that Kennedy would vote to uphold Prop. 8 in the Perry case -- making a majority of five to reverse the lower courts and reinstate California's same-sex-marriage ban.  While I can't reject this possibility out of hand, it seems quite unlikely to me given Kennedy's authorship of the Windsor opinion striking down DOMA.  I simply don't see how Kennedy could vote, on thin evidence (see yesterday's post), to strike down DOMA on the ground that it was motivated by animosity toward homosexuals but not vote to strike down Prop. 8 on evidence that seems at least as strong.  True, Kennedy's Windsor opinion contains those mysterious federalism-tinged paragraphs in which he suggests that DOMA's intrusion on an area of traditional state concern somehow increases the likelihood that it was motivated by animosity.  But as I suggested yesterday, that reasoning is so specious that it seems much more likely to be a red herring, a fig leaf (to mix metaphors egregiously) intended to give the impression of a narrow ruling in Windsor.  I suppose it's possible that Kennedy actually believes the federalism hooey, in which case he might well have voted to uphold Prop. 8 on its merits.  (Kennedy's dissent in Perry offers no clues in this regard; he argues effectively against the Court's dismissal on standing grounds but says nary a word about the substantive equal-protection or due-process issues in the case.)  But I'd prefer to give Kennedy a bit more credit than this.

And then there's the fact that Justice Sotomayor joined Kennedy's Perry dissent arguing against the standing dismissal.  Why would she have done that if she thought Kennedy would provide the fifth vote for upholding Prop. 8 on the merits?  Perhaps Sotomayor simply refused on principle to join a weak opinion on standing, even though the alternative would have been a decision on the merits she believed to be wrong.  But Sotomayor's willingness to join Kennedy's at-least-equally weak opinion in Windsor tells me she is not above playing the long game where necessary. (Of course, her vote was essential for a majority in Windsor but made no difference in Perry, with five votes to dismiss secured already.  That might have made it a bit less painful for her to stand on principle in the latter case.) 

The more likely explanation for the three center-liberals' joining the Roberts opinion, I think, is our old friend from Windsor, strategic pragmatism.  The Court had struck its blow (hardly a knockout punch, to be sure) for gay rights in Windsor; this made a decision on the merits in Perry somewhat less important to the center-liberals.  Perry, too, was politically more delicate than Windsor, as it involved a state ban on same-sex marriage not all that different from the bans in place in many other states.  Kennedy's federalism feint in Windsor therefore wouldn't work in Perry; if the center-liberals wanted to limit the scope of a Court ruling to avoid backlash, they would have had to find some other tactic for doing so.  Voting to dismiss the appeal entirely on colorable (if shaky) standing grounds might well have been the tactic of choice.  Doing so had the added advantage of reinstating the Perry district court's broad ruling against Prop. 8 and returning same-sex marriage to California as a result.

One could argue that the better maneuver for the center-liberals would have been to decide Perry on its merits and then simply affirm the Court of Appeals's ruling on the same grounds that court used -- i.e., that facts specific to the ballot-initiative process behind Prop. 8 demonstrate an illicit motive of animosity toward homosexuals.  Such a ruling would have been narrow enough to leave the same-sex-marriage bans standing (at least for now) in most or all the other states that have them.  And while the reasoning supporting the Court of Appeals's conclusion is nearly, maybe equally, as weak as Kennedy's reasoning to a similar conclusion in Windsor, it isn't any weaker.  If Ginsburg, Breyer, and Kagan were willing to sign on to Kennedy's vacuous logic in Windsor, I see nothing preventing them from endorsing similarly vacuous logic in Perry.  (I suspect Kennedy and Sotomayor were willing to do so; this would explain their Perry dissent arguing that the Court should have addressed the merits of the case.)

Either approach -- the tendentious standing dismissal actually employed by the Perry majority, or a tenuous "animosity"-based invalidation of Prop. 8 on the merits a la Windsor -- would have amounted to an ugly win for gay rights.  A Windsor-like ruling on the merits would have given us the first instance of the nation's highest court striking down a state ban on same-sex marriage -- an important arrow in the gay-rights quiver, albeit a rather slim one.  On the other hand, the ruling the Court in fact issued has the advantage of leaving the district court's sweeping renunciation of same-sex-marriage bans -- the most aggressive by any federal court yet of which I'm aware -- intact and legally binding in California.  Either result would have meant a welcome return to marriage equality for same-sex couples in California.  Neither would have amounted to anything like a principled stand for equality on the part of the Court.

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