Tag Archives: elena kagan

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.

“Uncharted Waters:” Confused By Array of Options, Justices Mull Deciding Proposition 8 Case on Procedural Grounds

Prop 8 Flag
Picture via Variety.

When all was said and done, there weren’t any major revelations in Tuesday’s oral argument for Hollingsworth v. Perry, but it did set the stage for an interesting two hours of arguments on the Defense of Marriage Act that the Supreme Court will hear today.

Chief Justice John Roberts looked for ways to dispose of the Proposition 8 challenge based on the procedural question of standing–as he has done in so many other cases during his tenure–and at least four of his fellow Justices seemed receptive to that option, dissatisfied with the alternatives that the attorneys before them were offering.

The Prop 8 challengers and the United States government framed this fight as the latest in a long line of struggles for equality, appealing to the liberal wing of the Court as we thought they might. They drew parallels to Brown v. Board of Education and Loving v. Virginia, the 1967 case that outlawed state bans on interracial marriages. Justice Ruth Bader Ginsburg–a civil rights pioneer in her own right–reminded Charles Cooper, the lawyer defending Proposition 8, that it was unsound to rely on the Constitutional reasoning of a thirty-year-old Supreme Court decision unfavorable to gay marriage (Baker v. Nelson), given that gender discrimination was barely even recognized back then. Justice Sonia Sotomayor questioned Cooper about whether the government had any rational basis to deny gays and lesbians benefits other than marriage, and Justice Elena Kagan repeatedly pressed Cooper to specify the harm that same-sex marriage causes.

And, as expected, Justices Samuel Alito and Antonin Scalia did not take kindly to the arguments of the Prop 8 challengers. Scalia managed not to emit any overly damaging sound bites this time–the worst thing he said concerned potential “deleterious effects” of same-sex parenting on children–but got into a testy exchange with anti-Prop 8 attorney Ted Olson. Seeking to make a point about America’s long and treasured history of discriminating against gays, he interrogated Olson on when exactly gay marriage bans became unconstitutional, berating him when Olson attempted to answer with a rhetorical question about interracial marriage prohibitions, and responding triumphantly when Olson admitted that he could not provide a specific day: “Well, how am I supposed to decide the case, then–if you can’t give me a date when the Constitution changes?”

Debates that the public has been having for years spilled over into the courtroom as the Justices extended each side’s arguments to their logical conclusions. They grilled Cooper on why, if procreation is the main point of marriage, the state hasn’t banned marriages between infertile, elderly or incarcerated couples. They asked Olson whether a state could prohibit polygamy or incestuous marriages if marriage is in fact a fundamental right under the Constitution. Neither of the answers that the attorneys provided–a convoluted riff about preventing the evils of infidelity from Cooper, and a muddy distinction drawn by Olson between status and conduct–seemed to satisfy a clear majority of the Justices.

Donald Verrilli
Solicitor General Donald Verrilli in 2008. Picture by the Associated Press, via Cleveland.com.

Though none of the questions came out of left field, there weren’t any obvious winners or losers, as each of the lawyers’ arguments had holes that made several Justices uncomfortable. Solicitor General Donald Verrilli, Jr., arguing the federal government’s position in support of the Prop 8 challengers, probably fared the worst out of the three attorneys. He took a verbal beating from both liberal and conservative justices over the Obama administration’s dubious stance that states offering civil unions must be made to offer same-sex marriage as well, while states that have never allowed the civil union option should not be required to legalize same-sex marriage. Wouldn’t such an “all or nothing” approach incentivize states to grant their gay citizens no rights instead of some rights, Breyer asked? Verrilli didn’t have a good answer. Then again, as last year’s oral arguments for the Affordable Care Act showed, he doesn’t have to be on his A game for the Justices to find in his favor. Even if the Justices are loath to accept the federal government’s preferred “eight state” course of action, the Obama administration would still celebrate any California-specific result that leaves intact federal district judge Vaughn Walker’s ruling against Prop 8 (or the Ninth Circuit affirmation of that decision).

In the end, it all comes down to Anthony Kennedy, as it has many times before and will again in the future. Justice Kennedy did quite not tip his hand at yesterday’s argument, asking probing questions of both sides. He showed concern over what would happen to the 40,000 children in California with same-sex parents if their fathers and mothers were denied the right to marry, yet balked at the thought of finding a fundamental right to same-sex marriage, warning that the Court was wandering into “uncharted waters.” Kennedy pushed Cooper to concede that he couldn’t think of any specific ways in which same-sex marriage injures society, but also suggested that the case might have been improvidently granted in the first place and should be thrown out based on standing rules. Basically, he appeared to be searching for a rationale to justify a limited rather than broad ruling. Hence, it’s unlikely that the Court will uphold Proposition 8 or make same-sex marriage constitutional across all 50 states–but beyond that, it is unclear what the exact decision is going to be.

Prior to Tuesday’s oral argument, David Boies, Ted Olson’s partner in Hollingsworth v. Perry, had confidently predicted that the Proposition 8 challengers would win the case by at least a 6-3 margin. Emerging from the courthouse into the sunshine yesterday afternoon, however, Olson didn’t sound so sure. “Based on the questions the Justices asked, I have no idea” what the Supreme Court will rule, he said. Most court-watchers don’t, either, but it will be very interesting to see how the Prop 8 arguments over standing, states’ rights and respect for the legislative process play out when the Justices tackle similar questions in the United States v. Windsor DOMA challenge today.

Supreme Court Reactions: Tweets from the Prop 8 Oral Argument

Oral argument for the California Proposition 8 case has ended in Washington, D.C., and the Supreme Court audio and transcript are now up. It’s pretty inconclusive from today’s session what kind of ruling the Justices are going to come up with, but that didn’t stop the Twittersphere from exploding into varying degrees of rage, joy and punditry. Here is a brief recap in tweet form, culled from legal commentators, journalists and the rest of the peanut gallery:

#23: The Living Constitution

I was first made aware of David A. Strauss’ The Living Constitution via a Stanley Fish column on the New York Times web site. Titled “Why Bother With the Constitution?,” Fish’s blog post for May 10 dovetailed Supreme Court nominee Elena Kagan’s impending confirmation process with the fundamental constitutional questions raised by Strauss in his 139-page book.

Professor Fish’s reaction to The Living Constitution is best described as righteous indignation. To some of Strauss’ statements he retorts, “This is simply wrong.” To others, with considerable consternation, “This is an amazing statement.” Towards the end he proclaims that “the incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, ‘it makes sense,’ he says, ‘to adhere to the text even while disregarding the framers’ intentions.'”

So what exactly is going on here? Clearly something that Strauss is advocating, or even simply implying, is rather disagreeable to Mr. Fish. The former’s thesis is described (on the book’s front flap) as a defense of “the living Constitution…a common law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders.” Or, as Stanley Fish would have it, “Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.”

Not exactly. I don’t get the impression Strauss intended to relegate the written Constitution to window dressing. Nevertheless, Fish is correct in noting that the The Living Constitution makes some bold claims as to the document’s role in contemporary jurisprudence. In large part, the book is a crusade against “originalism,” the judicial philosophy espoused most visibly by Supreme Court justices Antonin Scalia and Clarence Thomas. According to the originalist line of thinking as delineated by Strauss, “when we give meanings to the words of the Constitution, we should use the meanings that the people who adopted those constitutional provisions would have assigned…It is impermissible — it’s a kind of cheating, really — to take the words of the Constitution and give those words a meaning that differs from the understandings of the people who were responsible for including those words in the Constitution in the first place.”

The obvious counterpoint is, of course, the question of what to do in the majority of scenarios in which the Founding Fathers set forth no explicit guidelines (what exactly constitutes “cruel and unusual punishment?”), could not possibly have foreseen the issues (privacy on the Internet), or espoused views that are no longer acceptable in modern society (slavery). Acknowledging these obstacles, Strauss contends that they render originalism useless as a judicial philosophy. (In a section he headlined “The Originalists’ America,” Strauss remarks that “racial segregation of public schools would be constitutional,” “the government would be free to discriminate against women,” “the Bill of Rights would not apply to the states,” and so on.)

In titling his book The Living Constitution, he follows a long (albeit controversial, like nearly everything else related to jurisprudence) tradition of adhering to a more flexible view of the Constitution. But then he takes matters a step further. “It is the unusual case,” Strauss notes, “in which the original understandings get much attention.” In Strauss’ estimation, not only is the Constitution necessarily mutable to fit the needs of a dynamic society, in a way it is actually irrelevant to modern “constitutional” law itself. This is because of what he terms the “common law” approach: historically, “the law was a particular set of customs, and it emerged in the way that customs often emerge in a society…It can develop over time, not at a single moment; it can be the evolutionary product of many people, in many generations.”

In contemporary American law, this series of ever-shifting customs takes the form of precedent. Past judges’ rulings are considered the foundation upon which future verdicts are rendered; thus, Strauss claims, this methodology avoids both the impracticalities of originalism and the dangers of judicial overreach inherent to the dominant view of “living Constitutionalism,” in which activist judges are free to bend the law to their liking at will.

In reality, however, what the author deems an alternative approach to mainstream modes of thought is not entirely groundbreaking. At its simplest, Strauss’ thesis is simply a reassurance that living Constitutionalism works, that it does restrain judges from arbitrary decision-making. Where it differs, however, is in his attitude toward the actual text of the Constitution. To Strauss, the lip service that justices pay to the sacred text in their judicial opinions is just that: lip service. In actuality, he argues, current legal interpretation has so completely evolved and transformed over the years that the written Constitution itself has lost its germaneness to today’s legal wrangling. Quoting Thomas Jefferson, who wrote that “the earth belongs…to the living,” Strauss maintains that the Constitution, restrained as it is by the chains of centuries-old thinking, is an insufficient substitute for judicial precedent. And yet by forcing judges to formulate constitutional justifications for their every ruling — however tenuous the connection may be — living Constitutionalism, in most cases, prevents the worst variants of judicial activism. (Of course, depending on one’s particular ideological affiliations and the results of any given trial, this may or may not always be readily apparent.)

Stanley Fish, meanwhile, is having none of this. “You don’t interpret a text by looking for meanings people would find agreeable,” he writes. “You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.” He then angrily concludes: “If this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.” That Fish and Strauss cannot even agree on what the “real” Constitution is provides a worthy bellwether of the political whirlwind that is sure to accompany Elena Kagan into her much-anticipated confirmation hearings.