Tag Archives: Defense Of Marriage Act

[Infographic] Supreme Court Rules DOMA Unconstitutional

In a barn-burner of a decision today, the Supreme Court found unconstitutional the federal Defense of Marriage Act (DOMA), striking down the law based on a combination of states’ rights, equal protection and due process arguments. As expected, Justice Anthony Kennedy wrote the majority opinion for United States v. Windsor, joined by Justices Breyer, Kagan, Sotomayor and Ginsburg. Justices Scalia, Roberts, Alito and Thomas dissented, with the former three each penning his own dissent.

The voiding of DOMA, which had kept the United States government from recognizing married same-sex couples, means that all legally-married couples can now receive the federal benefits allocated based on marital status, regardless of whether your spouse is of the same sex or not. The question of whether you can legally marry a person of the same sex in the first place, however, remains in the hands of the states, as the Court stopped short of declaring same-sex marriage to be a fundamental right.

The above interactive graphic shows key quotes from the justices, pulled from the March oral argument and from today’s ruling. You can scroll over each justice to open up a text box with his/her quotes. The red dot indicates the author of the majority opinion; yellow dots indicate the other justices in the majority; blue dots indicate the dissenters.

Further analysis of the Court’s decision in United States v. Windsor to come.

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make1:

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

 

  1. With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case. []

DOMA likely to fall, but how much further will Kennedy go?

Edie Arrives in Court

Edith Windsor, the 83-year-old plaintiff challenging the Defense of Marriage Act, arrives at Court with attorney Roberta Kaplan. Picture by Chip Somodevilla/Getty Images, found via ABC News.

Justice Anthony Kennedy had a choice to make this morning. In deciding the fate of the Defense of Marriage Act, should he go with a theory of federalism that emphasizes respect for states’ rights, or a wider-ranging theory of equality that might result in heightened legal protections for gays and lesbians across the United States?

Kennedy picked the former route and clung tightly to it today in a 110-minute oral argument for United States v. Windsor that put the swing Justice on firmer jurisprudential ground than yesterday’s Proposition 8 case. While the facts of Hollingsworth v. Perry pitted states’ rights and equal protection for gays directly against one another, leaving Kennedy confused as to which of a variety of unpalatable options he should choose, the legal issues in the Windsor case presented no such conflict. Rather, the state’s voters and the law’s challengers aligned in Windsor, where they merely asked the federal government to respect nine states’ decisions to recognize same-sex marriages. Here, the principles of federalism and equal protection both point to the unconstitutionality of DOMA.

Assuming that the Court doesn’t decide the case based on standing grounds, Justice Kennedy seemed perfectly content on Wednesday to limit any eventual ruling to the first question about states’ rights. He repeatedly reminded Paul Clement–the attorney tasked by the House of Representatives to argue in support of DOMA, since the Obama administration refused to defend it–that the right to define marriage (and the rest of family law) is “the essence of the State police power.” Kennedy also expressed concern over the sheer number of federal benefits provided based on marital status–1,100 and counting–noting that this means “the Federal government is intertwined with the citizens’ day-to-day life,” interfering with the state’s traditional “prerogative.”

Despite earlier rulings on gay rights cases that indicated a willingness to extend heightened judicial protections to gays and lesbians under the Fourteenth Amendment–an equality-based argument that would have far greater reach and be far more potent against discriminatory laws than a states’ rights takedown of DOMA–Kennedy appeared very hesitant to reconsider equal protection principles today (an issue on which he had also shown confusion at the Proposition 8 discussion yesterday). Several times during the oral argument, a fellow Justice or attorney would bring up Fourteenth Amendment considerations, and Kennedy would immediately steer them back to the federalism issues.

Sensing that its crucial fifth vote was reluctant to revisit arguments about equality, the liberal wing of the Court was happy to run with Kennedy’s line of thinking and echoed many of his concerns in follow-up questions. (One of the many perks of being a swing justice must be getting to set the tone for the oral argument and watching the rest of your colleagues follow along.) Justice Sotomayor asserted that the states, and not the federal government, control the institution of marriage, Kagan made reference to “historic State prerogatives,” and Ginsburg reiterated Kennedy’s sentiment that DOMA touches “every aspect of life” in a “pervasive” manner.

Kennedy’s hesitation notwithstanding, Justice Kagan in particular seemed intent on exploring heightened legal protection for gays and exposing DOMA as outdated legislation impermissibly based on animus. At one point, she dismantled Paul Clement’s arguments about legitimate government purposes for DOMA–he’d insisted that the federal government passed the law for purposes of uniformity across the states–by reading to him the 1996 House Report that clearly states that DOMA sprang from “moral disapproval” of homosexuality. While this rationale was once constitutional, basing discriminatory laws on disapproval toward a particular group has since been prohibited in 2003’s Lawrence v. Texas, the majority opinion for which was authored by–you guessed it–Anthony Kennedy himself. Clement was forced to backpedal and say that while some legislators may have had “improper motives” for DOMA, not all 84 of the Senators who voted for the law bore animus toward gays and lesbians.

Just as the liberal justices tailored their questions toward Kennedy’s views, the conservative Justices, led by Chief Justice John Roberts and Justice Scalia, tried to assuage Kennedy’s concerns by pressing Solicitor General Donald Verrilli, Jr. and Edie Windsor’s lawyer, Roberta Kaplan, on states’ rights. Roberts repeatedly asked both parties if there was truly a federalism problem–a bit of a trap for Verrilli in particular, who as the representative of the United States federal government has no interest in ceding too much power to the states–and became audibly annoyed whenever Kaplan or Verrilli attempted to tie their answers to an equal protection argument. While Roberts and Scalia tried to compel the DOMA challengers to say that federal overreach was not really an issue here, Justice Alito brought up the practical point that a DOMA defeat would mean that gay couples could be treated differently whenever they moved across state lines–and therefore, that the equal protection problem is ultimately unavoidable.

Of course, Justice Alito is spot on here. Regardless of how Anthony Kennedy decides to decide this case, marriage equality is spreading throughout the United States, and the Supreme Court will eventually have to decide what level of judicial protection gays and lesbians deserve. As the swing vote firmly in control of the wheel, however, Kennedy has the luxury of slowing down the train if he wants to, and it looks like he’s going to do just that in the name of federalism. It won’t be as big of a step as many had hoped for, but come June we will likely be one tiny step closer to a more perfect union.

The Supreme Court Hears Same-Sex Marriage Cases: A Brief Reading List

Edie Windsor

Edie Windsor. Picture courtesy of the New York Times. 

All eyes are on the Supreme Court this morning as it prepares to finally hear two cases on same-sex marriage, the civil rights issue of our time. Starting shortly after 10 a.m. today, a 60-minute oral argument will be held for Hollingsworth v. Perry, which questions the constitutionality of California’s Proposition 8 restricting the definition of marriage to one woman and one man. Tomorrow morning, the Justices will hold a 110-minute argument for United States v. Windsor, in which the Supreme Court could strike down the 17-year-old Defense Of Marriage Act (DOMA) that denies federal benefits to same-sex couples even if their marriages are recognized by the state. (The Court is expected to release the audio recording and transcript for each argument shortly after it ends.)

Given the historical significance of these two cases, it’s not surprising that the Internet has lit up with a maelstrom of commentary on just about everyone and anyone who is even remotely connected to either suit. From current Chief Justice John Roberts to former Justice Harry Blackmun, the marquee duo of lawyers challenging Proposition 8 to the people who have been paid to wait in line since Thursday night for the chance to score seats at the oral arguments, everything SCOTUS-related has come under increasing scrutiny as March 26, 10 a.m. draws near. Lest you are feeling overwhelmed by this deluge of information or just looking to do a little bit of last-minute reading as we wait for the Court to wrap up the day’s oral argument, I’ve compiled some of what I think are the most helpful and informative articles for understanding who’s who and what’s going on:

The Overview: Hundreds of articles have picked apart the individual issues and key players before the Court. For one centralized, concise summary of all the legal issues at stake in Hollingsworth and Windsor, the inimitable SCOTUSblog has two primers from Amy Howe. For a quick-hits list of things to watch for at the arguments, go to CNN’s Matt Smith or Slate’s Emily Bazelon, both of whom have highlighted the most important things to know.

The Plaintiffs of Proposition 8: Unsurprisingly, the media has made much hay of the human interest stories behind these cases. The two couples handpicked from California to challenge Prop 8–Kris Perry and Sandy Stier, Paul Katami and Jeff Zarrillo–are profiled in USA Today as “workaday couples living the American Dream, with one exception–they can’t marry their partners.” Perry and Stier also recently gave an interview to the Associated Press (found via the Huffington Post) in which they recall how they’ve lived the last four years in a “pins-and-needles way” while litigating their case up to the nation’s highest court.

The Lawyers Challenging Proposition 8: One of the most dramatic storylines in a case chock-full of them has to be the partnership of superstar lawyers David Boies and Ted Olson, who were famously opponents in Bush v. Gore. The conservative Olson, a former Solicitor General for the U.S. under President George W. Bush, was initially met with some skepticism when he announced that he would be joining Boies in the fight against Prop 8; the Los Angeles Times profiles him here. David Boies, for his part, gave an interview to USA Today two weeks ago stating his belief that Hollingsworth v. Perry will be decided in their favor with more than five votes.

The Plaintiffs of DOMA: “I came to New York to let myself be gay.” Edie Windsor, an 83-year-old widow and former IBM engineer who was engaged to Thea Spyer for 40 years and married for two before Spyer’s death, is the subject of an illuminating New York Times piece about her reasons for challenging the federal government. New York Magazine recently compiled a slideshow of pictures from Windsor and Spyer’s life together.

The Lawyer Challenging DOMA: Though Windsor–with her winsome personality, elegant looks and her compelling love story–now looks like what civil rights lawyers would call the perfect plaintiff for same-sex marriage, her case was rejected by a major gay rights organization before being picked up by Roberta Kaplan, an attorney with Paul, Weiss, Rifkind, Wharton & Garrison. Kaplan, who has said that it took her all of five seconds to decide that she wanted to litigate Windsor’s case, explains her reasoning to Advocate.

Justice Anthony Kennedy: The current swing vote on an increasingly polarized Court, Justice Kennedy’s jurisprudence isn’t always easy to pin down, but he has been sympathetic to gay rights in the past. Famously, he cast the deciding vote (and wrote the opinions) in both Romer v. Evans, which threw out a Colorado law barring anti-gay discrimination laws, and Lawrence v. Texas, in which the Court overturned a Texas sodomy law that was used to prosecute a gay couple for consensual sexual activity. Back in December, when the cases were first granted, Jeffrey Rosen of The New Republic considered whether Kennedy would go for a broad constitutional ruling or a narrow one in light of his previous rulings. Garrett Epps of The Atlantic writes here that we can expect Kennedy to stick to his record of defending both states’ rights and gay rights.

Justice Antonin Scalia: Just as Kennedy is known for leaning libertarian on gay rights issues, Scalia is quite well-known for his moral opposition to same-sex marriage. The big question going into today and tomorrow’s arguments is what he will say this time about gay marriage, and how offensive it will be. Mother Jones and ABC News have both compiled some of Justice Scalia’s thoughts on same-sex marriage over the years, including pieces of his dissents in Romer and Lawrence, and his now-infamous comments comparing disapproval of homosexuality to disapproval of murder, made during a speech at Princeton in 2012.

The Families of the Supreme Court: Robert Barnes of the Washington Post discusses the love lives and marriages of the Justices, noting that many of them have not chosen the “traditional” marriage or childbearing arrangements that Prop 8 and DOMA supporters trumpet. The Los Angeles Times also brings up the fact that Chief Justice John Roberts has a gay cousin, Jean Podrasky, who will be in attendance at the oral arguments this week in the ‘families and friends of SCOTUS’ section. Podrasky told the LA Times: “I believe he sees where the tide is going… I absolutely trust that he will go in a good direction.”

The Shadow of Roe v. Wade: When the DOMA and Prop 8 suits were first filed, many wondered whether pushing same-sex marriage through the courts rather than the state-by-state legislative process was a mistake, pointing to the cautionary tale of Roe v. Wade, which polarized the debate on abortion. The New York Times writes on the shadow of Roe here.

The Forerunners: Linda Greenhouse of the NYT delves into the notes of the late Justice Harry Blackmun (the author of Roe v. Wade) to ascertain his thoughts on same-sex marriage, an issue that the Supreme Court wouldn’t even touch while Blackmun was on the bench in the 1970’s. Greenhouse also highlights the story of Jack Baker and James McConnell, a Minnesota couple who took their state to court in 1970 for their right to marry each other, and reflects on how much public opinion has changed since then.

The Public: Public support for same-sex marriage has snowballed in the last year, and it’s impossible to think that the Justices haven’t noticed. The Pew Research Center found in a March 2013 poll that support had swelled to a high of 48% (versus 43% of respondents who were opposed to same-sex marriage). NPR has created a timeline tracking same-sex marriage in the courts and in pop culture here.  Meanwhile, sensing this change in the air, members of Congress have been tripping over each other to announce their support for same-sex marriage before the Supreme Court speaks, as TIME reports. Mother Jones has compiled a timeline of politicians’ about-faces on this issue.

The People Standing in Line: SCOTUSblog reported last week that people were lining up outside of the courthouse for oral argument seats as early as Thursday night, and the media promptly descended. One man tells the National Journal that he has conducted over 200 interviews while waiting in line. Meanwhile, Adam Liptak and SCOTUSblog trade barbs over the fact that at least some of those in line were paid to stand (or, sit) there by wealthier lawyers who want a seat at the historic hearings but not the five-day wait.

The Possible Outcomes:  Finally, the New York Times has a very helpful infographic here about the possible ways in which the Supreme Court could decide both cases, and what states each outcome would affect.

Supreme Court to Hear Prop 8, DOMA case

Photo by: J. Emilio Flores for the New York Times
Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

It’s That Time of the Year Again: Supreme Court Preview 2012 – 2013

The width of the smile seems to be inversely proportional to the amount of time the Justice has been on the court.

After a busy summer spent lecturing abroad, appearing at book promotions, publicly sparring with other federal judges, attending Yankees games and having their homes robbed, the Supreme Court is set to start its 2012-2013 session next Monday, October 1st. Though it may not quite match last term’s level of drama with its Affordable Care Act and immigration rulings, this term promises to bring a few blockbusters as the Court prepares to tackle cases on hot-button issues such as affirmative action, gay marriage, government wiretapping and capital punishment for the mentally incompetent. The Supreme Court’s calendar for the term is not entirely set in stone–an opening conference held on September 24th  placed six new cases on the docket, and more cases are yet to be added–but here are some highlights we can expect to see in this coming year:

  • Revisiting Affirmative Action in Higher Education: Abigail Fisher, a Caucasian student, applied but did not gain admission to the University of Texas. She claims that UT unfairly denied her a spot on the basis of her race: under a 1997 Texas law, automatic admission to state-funded universities, including UT, is granted to the top 10% of students in every Texas high school regardless of race. At UT, race is then used as one factor among many to determine admission for the rest of the remaining spots. Fisher did not make the top 10% cutoff at her high school and her application was passed down to the pool that took the applicant’s race into consideration. In 2003, SCOTUS ruled in Grutter v. Bollinger that the University of Michigan could constitutionally take race into account as one factor in its admissions decisions since racial diversity in higher education was a “compelling state interest.” Sandra Day O’Connor famously wrote in her opinion then that she expected the Court to review this ruling again in 25 years, when racial disparities had (hopefully) faded to the point where affirmative action for ethnic minority students was no longer necessary. It has only been nine years since Grutter, but the Court has seen some personnel changes and a marked shift to the right since then–and some believe that Justice John Roberts (who has in a previous case indicated that racial diversity at the elementary school level is not a compelling state interest) & Co. are ready and willing to either overturn or restrict the Court’s previous ruling. Fisher will be argued on October 10th.
  • Gay Marriage (Finally) Makes Its Way Up to SCOTUS… We Think: Last year saw a boom of gay marriage cases being fought in various federal appellate courts across the country, and a number of these decisions have now been petitioned to the Supreme Court. Of the various cases seeking review, most involve challenges to the constitutionality of the Defense Of Marriage Act (which currently denies federal benefits to same-sex couples even if their marriages are legally recognized by their home states), while one involves an appeal from the Ninth Circuit’s February 2012 decision finding unconstitutional California’s Proposition 8 (which changed the state’s constitution to bar same-sex marriage). This last case, Hollingsworth v. Perry, is the most marquee of the bunch, though Emily Bazelon of Slate argues in this essay that proponents of gay marriage should want SCOTUS to take a step-by-step approach and hear one of the less-glitzy DOMA cases instead of Hollingsworth–which may demand too much of SCOTUS by seeking a sweeping decision that marriage is (or is not) a basic right guaranteed to all. SCOTUS has not decided exactly which case to grant cert to yet, if any–none of the six new cases that it agreed to review on Monday involved gay marriage–but Ruth Bader Ginsburg did mention at a University of Colorado conference this summer that the high court is likely to hear a DOMA case this term.
  • Can Suspected Drunk Drivers be Forced to Undergo Warrantless Blood Tests?: In a case concerning the privacy rights of motorists stopped by police for drunk driving, the Supreme Court will consider Missouri’s appeal of a state supreme court ruling that its police wrongly administered a warrantless, non-consensual blood test on Tyler McNeely. Under current Fourth Amendment jurisprudence, there are certain defined exceptions that would justify a police officer’s warrantless search and seizure of a person, but McNeely claims that none of these exceptions applied to his blood test, which was forcibly taken at a hospital less than a half-hour after he was first pulled over and refused to take a breathalyzer test. McNeely argues that over half the fifty states have laws prohibiting law enforcement from administering non-consensual blood tests without a warrant. On the other hand, Missouri argues that the 1966 precedent of Schmerber v. California allows for warrantless blood tests where the “special facts” exception exists, including the fact that the body begins eliminating alcohol from its blood shortly after drinking.
  • While We’re On the Subject of Warrants, Drug-Sniffing Dogs Come Under Scrutiny As Well:
    Franky the drug-sniffing dog. We’re not sure what the white stuff around his muzzle is.

    On October 31st, the Court will hear a pair of Florida cases involving drug-sniffing dogs and warrantless searches. In Florida v. Jardines, the defendant argues that the police violated his Fourth Amendment Rights against illegal search and seizure when they brought a drug-sniffing dog named Franky to sniff at his door without a warrant. Jardines contends that there was no probable cause for the sniff, which constituted a search in and of itself. Meanwhile, in Florida v. Harris, the Supreme Court will decide whether an “alert” from drug-sniffing dog Aldo can be assumed credible (thereby establishing probable cause for a warrantless search) merely on the basis that Aldo attended sniffing school, or whether prosecutors must provide more detailed information to show that the dog is indeed reliable. The Florida Supreme Court ruled last year in favor of the latter approach, ordering that the State provide evidence of the dog’s training and certification, field performance records, and evidence of the handling officer’s own experience and training.

  • Capital Punishment, Habeas Relief and the Mentally Incompetent: In the U.S., inmates who have been tried and sentenced to death have a right to challenge their convictions and sentences in a habeas corpus hearing. The Supreme Court has also held that the Eighth Amendment bars capital punishment for the insane and the mentally disabled. But what happens when an inmate is convicted of a capital crime, sentenced to death, and then argues at the habeas corpus petition stage that he is mentally incompetent and therefore cannot assist his lawyers in preparing the petition? Is he entitled to a competency hearing? Two Circuits have found that inmates do have a “right to competence” at the habeas stage and have granted mentally incompetent inmates indefinite stays until they become competent–meaning that if they never do become competent, their death sentence is effectively turned into life imprisonment. Supporters say that it is unjust to force the mentally incompetent into habeas proceedings if they cannot help their own counsel assemble their case, and point out that capital punishment for the insane and mentally disabled is unconstitutional anyway. Opponents argue, however, that these indefinite stays run contrary to the state’s interest in the finality of convictions. The Supreme Court will hear arguments for Ryan v. Gonzales and Tibbals v. Carter on October 9th.
  • Corporations Behaving Badly and Causing Human Rights Atrocities Abroad: The Alien Tort Statute was penned in 1789 to provide for foreign citizens redress for violations of international law, in United States courts. Modern applications of this law have focused on bringing to justice former government officials accused of atrocities abroad, but Kiobel v. Royal Dutch Petroleum adds a Citizens United-esque twist: can corporations be sued under the ATS for genocide, torture and other violations of international law committed abroad? And what is the exact scope of the ATS in cases where the alleged violations were committed outside of the U.S., anyway? The Second Circuit said no to the first question in 2010, dismissing the case based on its holding that corporate liability is not a universally recognized norm of customary international law. Upon Kiobel’s appeal, the Supreme Court held oral argument on the case in February 2012, but took the unusual step of ordering further argument for the new term beginning in October. This will be the first argument of the 2012-2013 year: look for the justices to focus not so much on the corporate liability issue but on the question of whether Kiobel can even bring her case in an American court for human rights abuses committed on foreign territory.
  • Government Wiretapping: The Supreme Court referees on October 29th the latest chapter in the fight between national security and civil liberties. In Clapper v. Amnesty International USA, a group of strange bedfellows (including Amnesty Int’l, the New York State Bar Association and the Gun Owners Foundation) have banded together to sue the government over the constitutionality of a provision in the Foreign Intelligence Surveillance Act that permits the “targeting” of “persons reasonably believed to be located outside the United States” for the purposes of “gathering foreign intelligence information.” Amongst other things, the law authorizes the government to wiretap such persons’ communications. The trouble for Amnesty and friends, however, is that in order to even sue in federal court, they must have standing, which requires them to show that they have suffered or will imminently suffer the injury they are complaining of. Unfortunately, they have no definitive proof that the government is in fact wiretapping their communications. Despite this obstacle, the Second Circuit permitted the case to proceed; SCOTUS will now decide whether the group does in fact have standing to sue.
  • Davids v. Goliaths–Immunity for Government Officials in Military and Prison Contexts: On Monday, the Supreme Court added to its docket not one but two cases from lawyerless petitioners, each involving the rights of individuals to sue the federal government. Millbrook v. United States arises from the claims of Kim Lee Millbrook, an inmate at a federal prison in Lewisburg, Pennsylvania who accused three prison guards of sexually assaulting him. Though his suit was dismissed by the lower courts, Millbrook handwrote an appeal in pencil to the Supreme Court, which then decided to use Millbrook’s case to resolve the question of government liability for claims made against federal prison guards, according to the Associated Press.  Meanwhile, Levin v. United States addresses government liability for tortious acts committed by military medical personnel. The case arises from a battery claim against the U.S. government, made by a Guam resident whose eye was allegedly damaged in a botched cataract operation carried out by a U.S. Navy surgeon. Levin appealed to the Supreme Court after the Ninth Circuit ruled against him and held that the federal government has sovereign immunity from battery claims.
  • Does the Government “Take” Your Land If It Repeatedly Floods Those Lands? Finally, the Supreme Court will settle this term the age-old question of whether the government must compensate parties under the Fifth Amendment’s takings clause if it repeatedly causes those parties’ properties to flood, thus “taking” the private property for “public use.” Arkansas contends that over a six-year period, the United States Army Corps of Engineers did just that to one of its forests, the 23,000-acre Dave Donaldson Black River Wildlife Management Area, causing degradation of the forest’s timber and destroying wildlife habitats. The government’s response is that the lands were not rendered completely unusable because the flooding was only “temporary” and the waters always receded. It maintains that its behavior may constitute a tort but does not rise to the level of a “taking.” While this case may sound a little bit like a no-brainer–why shouldn’t the government pay back the state for this recurring damage?–SCOTUS has in the last half-century chipped away slowly at the Takings Clause, going so far as to allow a Connecticut city to take over private property, without compensation, for the purpose of selling it to a private developer (in 2005’s Kelo v. City of New London). Oral argument for Arkansas Game & Fish Commission v. United States will be held on October 3rd.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.