Ever since the Supreme Court heard two major gay rights cases in March, the conventional wisdom among court-watchers is that we’re likely to see a split decision. The Court, according to most experts, will probably strike down the Defense of Marriage Act and issue a narrow ruling, perhaps on procedural grounds, on the California Proposition 8 same-sex marriage case. That outcome would be an incremental but important step forward in the progress of gay civil rights. Although gay marriage would not yet be recognized as a fundamental right, the Court would establish that the federal government can’t deny gay couples that are already lawfully married access to federal benefits, like social security or spousal tax exemptions.
Yet what if the Court doesn’t strike down DOMA? This past weekend, I visited Washington, D.C., and spoke to well-placed lawyers about the prospects for DOMA. Surprisingly, I heard speculation that the Court would defy the conventional wisdom on DOMA. No one said the Court was likely to endorse the law. But there was serious concern that the Court would do in the DOMA case exactly what the conventional wisdom says the justices will do in the Proposition 8 case: avoid a definitive ruling by deciding the case on procedural grounds. If the speculation is true, the DOMA case could end up a major setback for the gay rights movement. And it could put the Obama administration on a crash course toward a constitutional crisis.
Now rumors about pending Supreme Court decisions should be taken with a whole shaker full of salt. The Court, known as the tightest ship in Washington, rarely leaks. Yet last term’s rumors that Chief Justice John Roberts had changed his vote in the Obamacare case at the last minute were borne out. Especially given the enormous stakes in the DOMA case, perhaps it’s time to consider what might happen if the justices were to kick the case without a final ruling on the merits of DOMA’s constitutionality.
The scuttlebutt focuses on the conservative justices. One might expect the right wing of the Court to vote to uphold DOMA. After oral argument, however, Justices Scalia, Thomas, Alito, and the Chief may have seen the writing on the wall. There were four clear votes from the liberal wing of the Court to strike down DOMA and Justice Kennedy, the swing justice, appeared to be with them. Yet, Kennedy’s view of the case differed from that of the liberals. While they appeared ready to strike the law down as a violation of the Constitution’s guarantee of equal protection, Kennedy’s objections rested mainly on states’ rights. The federal government, he suggested, had no business defining marriage, which is traditionally a matter left to the discretion of states.
Kennedy’s federalism view of the case was, however, unmoored from precedent. There aren’t any prior Supreme Court decisions holding that the federal government can’t define marriage, especially when it comes to the distribution of federal benefits. If anything, the cases go the other way: The federal government generally has broad discretion over how to spend its money. There’s no “marriage exception” to Congress’s spending power. And if Congress can’t define which married couples receive federal benefits, what else is immune from federal definition? Property rights? Contractual rights? Who counts as an employee? As a sovereign, the federal government defines things like this for purposes of federal law all the time. Ceding that power to the states—other sovereigns—would be bizarre.
It is hardly clear, moreover, that DOMA interferes with the rights of states to define marriage. Since DOMA was adopted in 1996, 32 states have defined marriage to be one man and one woman and twelve states have defined marriage to include same-sex couples. If anything, DOMA has been welcomed with a wave of state laws defining marriage. Those definitions are good for all state laws and benefits.
Yet even if Kennedy’s federalism approach to DOMA doesn’t hold up, he doesn’t seem likely to vote affirmatively to uphold the discriminatory law. He’s often thought to be very focused on his legacy, and Kennedy must know that future generations will condemn our era’s intolerance of LGBT people. Perhaps that’s why Kennedy has voted in favor of gay rights in past cases, like Romer v. Evans (striking down Colorado’s ban on gay civil rights protections) and Lawrence v. Texas (prohibiting criminalization of same-sex sexual relations). Gay rights proponents celebrated those decisions, yet Kennedy’s opinions were also notable for their failure to articulate clear new doctrinal rules that would help gay rights proponents in future cases. Right after Lawrence, for example, a federal appeals court held that Kennedy’s opinion didn’t prevent the judges from upholding a state ban on gay adoption. Several courts have upheld gay marriage bans despite Romer and Lawrence.
Kennedy’s incremental approach might not work as well with DOMA, especially if we take the states’ rights approach out of the question. If the Court says that it’s unconstitutional discrimination for the federal government to deny gay couples benefits, it becomes hard to see how such a ruling won’t lead to future courts’ striking down of gay marriage bans. As the Court has repeatedly held, the Constitution’s anti-discrimination rules apply equally to the federal and state governments. If the federal government doesn’t have any valid public policy reasons to discriminate against gays and lesbians, what valid public policy reasons do the states have?
Furthermore, the federal government has argued in the DOMA case that the Court should finally articulate a clear new test for gay rights cases—a position likely to find support among the more liberal justices. That test, known as “intermediate scrutiny,” requires government to have an especially strong public policy reason before it can discriminate. Once again, it is difficult to see how intermediate scrutiny doesn’t lead to invalidation of gay marriage bans, gay adoption bans, and a variety of other sorts of anti-gay discrimination. Perhaps that is all just too much for Kennedy.
Here’s where the procedural out might be attractive to the Court’s swing justice. If he could avoid a substantive ruling, the nation’s marriage laws would be unaffected, left for the democratic process to revise or affirm as we the people determine. Some of the justices—we don’t know who—signaled their interest in the procedural issues back when the Court first agreed to hear the DOMA case. The justices directed the advocates to address two such questions and even appointed a lawyer who hadn’t been involved in the controversy to participate in the arguments on them.
The first question was whether the Obama administration’s position that DOMA is unconstitutional deprived the Supreme Court of jurisdiction—or legal authority—to decide this case. Usually, the Department of Justice defends a law in court. If a ruling goes against DOJ, it appeals as the losing party. Yet in this case, the DOJ is arguably not a losing party: Its view of the law was actually adopted by the trial court when the judge ruled the law unconstitutional. In fact, there may not be any losing party. Both Edie Windsor, who challenged DOMA when she was denied the spousal estate tax exemption after her wife died, and the Department of Justice agreed on the outcome. If there's no losing party, however, there's no one with the authority to appeal the lower court's ruling.
The second question was related to the first. Did the Bipartisan Legal Advisory Group established by the House of Representatives to defend the law when the administration declined, have standing to do that? The Court has occasionally allowed Congress to participate in litigation, but only when acting as “Congress.” In this case, however, the Senate declined to participate and BLAG, as it is known, only represents the House. This may not be enough to confer authority to BLAG to substitute in for the administration.
One doesn’t have to delve into the merits of these two procedural issues to see how they might be attractive to some members of the Court. If no one involved in the case was an appropriate party to defend the law on appeal, the Court would lacked authority to rule on the merits of Edie Windsor’s challenge. Her case—and the several other challenges to DOMA currently waiting resolution by the Court—would be sent back down to the lower courts and all the appellate court rulings vacated. Windsor, who won at the trial court, would receive her refund for the estate taxes her spouse had to pay. Yet because the trial court’s ruling was only applicable to her, not to all lawfully married gay couples, DOMA would remain the law of the land.
Allowing DOMA to survive in this way might be an appealing “second-best” option for the Court’s conservatives. They might well prefer a clear ruling upholding DOMA but recognize that they don’t have five votes for that outcome. Kicking the case back to the trial court would enable the law to live on. Indeed, for conservative justices who, like Kennedy, might be concerned about how history will view them, this option might even be ideal. Their reputations won’t be tarnished nearly as much as if they voted to strike down the law.
DOMA would still be subject to future challenges of course. Any lawfully married gay couple denied some federal benefit could sue. They should win those cases, especially if the administration continues to refuse to defend the law. Yet no one would have the legal authority to appeal. DOMA would suffer a thousand minor cuts—there are over a thousand federal laws implicated by DOMA’s refusal to recognize gay marriages—and, maybe years from now, would be little more than a ghost of what it is today. But we might never have a definitive Supreme Court ruling on DOMA’s constitutionality.
There is one possible route back to the Supreme Court. If someone challenges DOMA and loses, he or she would have the right to appeal. It’s hard to see that happening, however, given that the administration refuses to defend the law. Every challenger should win.
This outcome could be a significant setback for the gay rights community. Ever since oral argument in March, gay rights activists have taken for granted that DOMA will be voided. And they’ve been buoyed by a number of recent successes, like the four states that voted for marriage equality in the 2012 election and the repeal of Don’t Ask, Don’t Tell. Anything less than a win in the DOMA case will be a bitter pill.
The administration would be in an especially tough position. The DOJ has said it will continue to enforce DOMA in practice until there’s a definitive ruling on the law’s constitutionality, but there may never be such a ruling. The administration could decide to reverse course and no longer enforce DOMA at all, but this would still leave a patchwork of federal laws relating to marriage because the administration can’t tell independent agencies, like the Social Security Administration, how to apply the law.
A decision not to enforce DOMA would also risk establishing a dangerous precedent. The reason why the administration has enforced the law to date is because that’s the president’s obligation under the Constitution, which says he “shall take Care that the Laws be faithfully executed.” Failing to enforce a duly enacted law could be seen to violate this constitutionally imposed duty and set a terrible example for future presidents to pick and choose which laws they’ll enforce. Would Obama want to empower a President Rubio to decide unilaterally that Obamacare is unconstitutional and refuse to implement it? Refusal to enforce DOMA could even spark impeachment attempts by a Republican House that already smells blood in the water over the IRS scandal.
Or maybe not. As I noted earlier, rumors about how the Supreme Court will rule on a case tend to be unreliable. And given the chaos that would accompany the scenario sketched out above, one has to hope that the justices realize and understand the consequences of anything but a clear ruling on DOMA’s constitutionality. That might be reason enough for Kennedy to eschew procedural tricks and decide this case on the merits. We’ll all know for sure in the next two weeks, when the Court is expected to hand down its ruling on Edie Windsor’s challenge to DOMA.
Adam Winkler is a professor at UCLA School of Law and the author of Gunfight: The Battle over the Right to Bear Arms in America. He can be followed on Twitter at @adamwinkler.