06/19/2012 06:20 pm ET Updated Feb 02, 2016

Supreme Timing: Why It's Better for the Supreme Court to Hear the DOMA Case Before the Prop 8 Case (Part 2)

This is the second piece in a five-part series exploring the future of the DOMA and Prop 8 cases at the Supreme Court. Read Part 1 here.

In Part 1 of this series, I presented the argument that it is better for the marriage-equality movement if the Supreme Court hears the Defense of Marriage Act cases before it hears the Prop 8 case, not only because the DOMA cases have a stronger chance of winning at the Court but also because they establish a legal framework that would make future marriage-equality litigation (including the Prop 8 case) more successful.

Over the next three pieces, I will take an in-depth look at one issue surrounding the two cases' possible futures at the Supreme Court. The first issue, which this post will focus on, concerns the different resonances that the DOMA case may have with the Supreme Court as opposed to the Prop 8 case, given the ideological makeup of the current nine justices.

The Distinct Legal Issues at Play in the DOMA Cases as Opposed to the Prop 8 Case

It is a fact that the current Supreme Court is incredibly conservative, and it is almost certain that a straight-up question on whether or not gays and lesbians have a constitutional right to marriage equality, a question that could certainly be at stake in an appeal of the Prop 8 case, would be a court-splitter. The four conservatives (Roberts, Alito, Scalia, and Thomas) would likely vote against such a right, the four liberals (Ginsburg, Breyer, Sotomayor, and Kagan) would vote in favor, and Justice Anthony Kennedy would cast the swing vote, as he often does.

The importance of Justice Kennedy's vote can be seen in the Ninth Circuit decision upholding district court Judge Vaughn Walker's determination that Proposition 8 was unconstitutional. In his original decision, Judge Walker made a sweeping and powerful argument that Prop 8 had been passed to express a moral disapproval of gays and lesbians, and he held that all couples, regardless of sexual orientation, are entitled to equal marriage rights.

When the Ninth Circuit reviewed Judge Walker's decision, however, Judge Stephen Reinhardt, one of the most liberal judges in the country, chose to scale back Walker's original conclusions and look at Prop 8 through the unique lens of marriage equality's history in the state of California. In essence, Reinhardt held that the Ninth Circuit did not need to address any fundamental right to marriage equality because Prop 8 could be ruled unconstitutional by virtue of the fact that it took away rights that had already been given to gay and lesbian couples without any rational government interest in reneging those rights.

Reinhardt's decision seems to acknowledge, at least implicitly, that the Supreme Court is not yet ready to engage the question of whether or not there is an inherent 14th-Amendment right to marriage equality for all Americans. Of course, the Supreme Court is in no way bound to follow Judge Reinhardt's reasoning and could return to Judge Walker's broader opinion to either affirm or deny it, but Reinhardt's decision to focus his analysis on the foundation of Romer v. Evans, the landmark LGBT-rights case decided by Justice Kennedy's swing vote (and authored by him) looks to give Kennedy an out that would allow Prop 8 to be struck down without making a wider, precedent-setting argument.

Judge Reinhardt's opinion is persuasive, but it undeniably takes Colorado's Amendment 2 (which Romer struck down) and applies it to a case with similar but not identical circumstances. Amendment 2 and Proposition 8 are cut from the same cloth, but they are by no means equal in their intent or their effect: Amendment 2 denied gays and lesbians in Colorado any legal protections and would have rolled back preexisting rights that some of the states' couples enjoyed, while Proposition 8 only affected marriage and left intact gay couples' legal rights under California law while denying their relationships the title of "marriage."

Amendment 2, the Supreme Court ruled, was at once too broad and too narrow: It issued a blanket prohibition on any legal protections, but it did so only for one unique group, and without any legitimate governmental reasoning. Proposition 8, in this sense, could be viewed as too narrow twice over: It modified only the right to use a specific word for describing gay couples' relationships, and it did so only for gays and lesbians. (Of course, as Judge Walker's opinion eloquently demonstrates, the right to use the word "marriage" is a hugely significant one, and denying it does fundamental harm to gay couples.)

The Supreme Court could easily reject Reinhardt's analysis by making the argument that Prop 8 is distinct from Amendment 2 and ruling, in essence, that Reinhardt was wrong to rely so heavily on Romer, opening up the Supreme Court justices to a brand-new constitutional consideration of Prop 8. On the other hand, Justice Kennedy could look favorably upon Reinhardt's decision and uphold it as an extension of the legal principles that he developed in his opinion for the Romer case.

A Brief History of DOMA, and the Importance of Romer v. Evans at the Supreme Court

The Massachusetts DOMA cases, on the other hand, make an argument that seems as rock solid as any can truly be in our subjective and precedential legal system. In reality, the DOMA cases aren't about whether or not gay couples have an inherent right to marry; they are about whether those same-sex couples that are duly married under the laws of their state can be treated differently by the federal government than the heterosexual couples who are also duly married under those very same laws.

In other words, while a Supreme Court reviewing the Prop 8 decision would have to choose whether to address the issue of a fundamental right to marry or choose specifically to avoid that question, a Supreme Court reviewing the DOMA cases would have to make no such determination. The couples in all the DOMA cases are considered married under the laws of their states, and the validity of those marriages is not at issue. The DOMA cases, at their heart, involve questions of federalism and the interplay between the state and federal governments, topics upon which the Supreme Court's conservative justices look with a much more favorable light than equal protection.

In his original district court decision Massachusetts Judge Joseph Tauro struck down DOMA in part on 10th-Amendment grounds, accepting the argument made by the Commonwealth of Massachusetts, represented by Attorney General Martha Coakley, that DOMA was an unconstitutional encroachment by the federal government upon a matter of law that was traditionally the unique province of the states. Since the founding of the United States, marital law has traditionally been an area almost exclusively reserved to state governments and not the federal government. States make the rules for who can and cannot enter into a marriage, and if a state says that a couple is married, the federal government considers that couple married even if another state might not.

The Defense of Marriage Act turned this tradition on its head: For the first time in the history of the country, Congress enacted a federal definition of marriage, restricting it to heterosexual couples. Congressional sponsors of the bill made clear, on the record, that they intended the bill to demonstrate the federal government's position that heterosexual marriage was preferable to same-sex marriage (even though no states provided marriage rights to gay couples at the time). Perhaps more tellingly, DOMA was passed without any significant legislative fact-finding as to what effect the statute could have. That it passed so easily, with support from both parties, demonstrates just how much public opinion and awareness of LGBT issues has shifted in the past 15 years.

In its unanimous opinion upholding district judge Joseph Tauro's striking down of DOMA on equal protection grounds, the First Circuit (represented by the Republican appointed Judge Michael Boudin) chose not to make the same 10th-Amendment conclusion that Tauro did that DOMA constituted an unconstitutional intrusion of federal power upon the rights of the states. Instead, the First Circuit addressed the issue of equal protection but nevertheless explicitly cited the concerns of federalism in making its analysis.

When courts consider an equal-protection challenge, they first ask whether or not the challenger is part of what is called a suspect group -- that is, one that has been subject to discrimination in the past and therefore should receive a closer look by the judiciary when they are affected by government action. This is called "strict scrutiny," and laws must demonstrate a clear governmental intent to be upheld when considered through this lens. The lower, more deferential form of review, used for non-suspect classes, is called "rational basis scrutiny," and courts need only come up with some rational justification for laws considered under this review to find them constitutional. Because of this, laws very frequently pass rational basis review.

In the past, the Supreme Court has declined to designate gays and lesbians as a suspect class, and thereby consider laws against them using strict scrutiny review. (As I have argued before, I believe that the courts should make this determination. Nevertheless, since the Supreme Court has not, many lower courts are understandably wary of doing so themselves.) Because of this, the First Circuit (as did Judge Tauro before them) chose to consider DOMA under rational basis but argued that "Supreme Court precedent relating to federalism-based challenges to federal laws reinforce the need for closer than usual scrutiny of DOMA's justifications and diminish somewhat the deference ordinarily accorded." The First Circuit then held that DOMA is unconstitutional under this "rational-basis-plus" standard of review, specifically citing the use of a similar standard of review in Justice Kennedy's Romer decision.

If the DOMA cases were to reach the Supreme Court first, the Court (and Justice Kennedy in particular) could rely on Romer v. Evans not as a parallel to the case at hand but as a case that established the proper basis of review for the law at issue. In considering the Prop 8 case, on the other hand, the Court would be reviewing an appellate decision that essentially mapped the Romer analysis onto a new case that is comparable but not identical.

In this sense, the First Circuit's decision is a more conservative one than the Ninth Circuit's, because it considers DOMA through the lens of the history of marital law and federalism and looks at how DOMA changed what came before it, whereas the Prop 8 case uses the problems inherent in a previous constitutional amendment (Amendment 2) and applies those to another constitutional amendment that came after it. The federalism claims that the DOMA cases make are relatively comfortable waters in which the Supreme Court's conservative justices can swim. Judge Reinhardt's Romer analysis, on the other hand, however cautious it may be, is essentially a brand-new constitutional argument about the rights of the people to take away civil rights they have already bestowed.

In Part 3 of this series, I will look at the distinct constitutional implications of the Supreme Court striking down DOMA, a federal statute, as opposed to Prop 8, a constitutional amendment enacted by a popular vote, and why the Court might look very differently at the institutional precedents set by striking down each of the two statutes.

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Jacob Combs is a contributor and writer at