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Douglas Kmiec

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The Supreme Court's Pleasingly Predictable Term, Same-Sex Marriage and the Eye-rolling Justice Alito

Posted: 06/26/2013 6:03 pm

For weeks we have been on alert for supposedly precedent-setting rulings on affirmative action, voting rights and of course same-sex marriage. The rulings are in and like so many promised blockbusters at the movie house this one just didn't deliver.

Oh yes, affirmative action was tightened up if you can call reminding the University of Texas that they should read the Supreme Court opinions before they act on them a tightening. The Voting Rights Act, which has been classifying southern states as an incorrigible place run by legislatures akin racist sheriffs like that portrayed by Rod Steiger in In the Heat of the Night ever since the mid-1960s, surely needed updating -- not to dilute the commitment to fair registration practice, but to strengthen it. Moreover, an up-to-date coverage formula might also stir Congress to challenge cumbersome voter id requirements and block today's equivalents of biased, literacy tests, and not just in one "covered region," but everywhere discrimination rears its head. If these mechanisms of modern bias are shown to predominate in particular places -- (ahem, Texas which seemed overly anxious after the Court announced its opinion to make it difficult for all eligible Texans to vote) -- Congress can ferret that out with today's evidence not that of nearly a half century ago.

And same-sex marriage? The Court didn't approve or disapprove of same-sex marriage but it did protect those who, under the laws of their respective states, are held out by the state as lawfully married. The federal Defense of Marriage Act (DOMA) fell short both because it operated in disregard of the States longstanding power to define marriage, and by means of that disregard, treated gay couples as second class or inferior contrary to the equal protection obligations all States must observe.

And California's attempt by the voter initiative known as Proposition 8 to overrule the California Supreme Court's extension of marriage to same-sex couples? As predicted virtually everywhere, except perhaps Federalist Society meeting halls, the effort to overrule the state Supreme Court by two of our most distinguished trial lawyers failed because a basic point of justiciability was absent.

If there is an irony, it is that the governor and state AG's standing on political principle and proclamation not to enforce the law as passed meant that there was no one in the case on appeal with actual legal standing. While state law allows supporters of a proposition, whether or not injured, to defend it in court, the federal courts are of expressly limited jurisdiction and can only act if there is an injured party before it and that injury can be redressed by the court. The injured same sex couples at trial got full remedy by the district court injunction and there were no additional injured parties to be found thanks to the proclamation of nonenforcement. Had the state executive performed its constitutional function with a bit less grandstanding, it is likely that Proposition 8 would have been found invalid altogether. As it is, Proposition 8 remains enjoined only as to the same-sex couples against whom it was sought to be enforced by local county officials at the time of trial, but it is an open question whether the issued Proposition 8 injunction extends beyond that.

The governor and state attorney general who refused to defend Proposition 8 will surely claim a broader injunction, and it may be possible if needed to avoid stigmatizing the couples who got initial relief. Again, this is a question of federal law. Ninth Circuit precedent is not favorable since the case was not brought as a class action. There is a good deal of back and forth in today's opinions over whether the federal courts ought to give deference and accept state standing as sufficient, but the Chief Justice and his majority of conservative and liberal justices concluded otherwise. This common ground -- so rare these days in Washington -- was achievable because the Chief Justice was hewing closely to the judicial function. Being careful to avoid opining along ideological lines about whether same-sex marriage is good or bad, the partisanship of past courts was put aside. In this, the Court members expressed a difference of opinion over a matter that likely only stirs the blood of a civil procedure student somewhere deep in the law school library.

All this a blockbuster doth not make. The rulings, however, reflect well what Chief Justice Roberts has been working so hard to achieve: a faithful reading of a Constitutional document that resolves the precise dispute before the Court. That's what umpire Roberts promised at confirmation and for the most part, he is delivering. The results in the same sex cases were predictable, and indeed, they were rather precisely predicted on the day of the oral argument.

Hmm. A rule of law capable of being known in advance and applied evenhandedly without political glint. As a system promotive of individual justice and stability, it darn well may catch on even as there is then little likelihood of an HBO miniseries. Indeed, there is so little new here that several law professors tried to stir up trouble over Justice Alito's middle school habit of rolling his eyes or grimacing when he thinks a legal view open to question. While these hypersensitive law professors fussed about this silliness and claimed it to be meanly directed at Justice Ginsburg, having been the object of an Alito eye roll or two during our years of practice together in the Office of Legal Counsel of the Justice Department, I am certain it is of little consequence on the Court. Indeed, if Justice Ginsburg is annoyed, she is more than capable of responding. Thankfully, eye rolling is still an aspect of freedom, and while mother Alito may have cautioned against it, Justice Alito is likely unaware then and now of this somewhat amusing trait.

That said, the fact that we are speaking of such trivialities at the end of a Supreme Court term that saw race and sexual orientation in the crucible is just another measure of John Roberts' success in re-establishing the Court into the least dangerous branch -- even if it means it is the least interesting as well.

 

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