What to Expect as the Supreme Court Takes Up Marriage

By Associate Professor Douglas NeJaime

This op-ed originally appeared in The Advocate.

The Supreme Court has decided to hear two cases relating to marriage equality. The first, United States v. Windsor, raises the constitutionality of section 3 of the federal Defense of Marriage Act, which denies federal recognition to same-sex couples' marriages. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. After the court's announcement, many commentators and some LGBT activists speculated that the court's ultimate decision in the cases would bring the end of marriage-based discrimination against same-sex couples. Some expect the justices to extend the fundamental right to marry to same-sex couples. Others are focusing on equal protection, anticipating a ruling that sexual orientation classifications merit heightened scrutiny. Such a decision would immediately cast doubt on any form of sexual orientation discrimination, including the marriage prohibitions that a vast majority of states maintain.

But this might all be wishful thinking.

Yes, the court might have taken the Windsor case because the Second Circuit Court of Appeals applied heightened scrutiny to sexual orientation classifications, whereas the First Circuit's Gill v. Office of Personnel Management decision applied only rational basis review. But, more likely, the court might have taken Windsor and not Gill because all nine justices could participate in the case. It was widely believed that Justice Kagan would have recused herself from Gill given her role in the Obama administration during deliberations regarding that case.

Read the complete story here.

A Significant Combination: Windsor and Perry at the Supreme Court

By Professor Doug NeJaime

The U.S. Supreme Court has decided to hear two cases implicating marriage for same-sex couples. The first, United States v. Windsor, raises the question of whether Section 3 of the federal Defense of Marriage Act (DOMA), which denies federal recognition to same-sex couples' marriages, is unconstitutional. The second, Hollingsworth v. Perry, involves the constitutionality of California's Proposition 8, the state constitutional amendment banning marriage for same-sex couples. That the Court has taken these two cases suggests that it may approach the significant issue raised by the Second Circuit in Windsor -- but avoided by the Ninth Circuit in Perry -- regarding the level of scrutiny to be afforded sexual orientation classifications for equal protection purposes. If sexual orientation classifications merit heightened scrutiny, as the Second Circuit held, all laws that discriminate against lesbians and gay men -- including state marriage prohibitions -- would be suspect. Of course, the combination of Windsor and Perry also suggests that some Justices may believe there is a material distinction between a federal law denying recognition to same-sex couples' valid state-law marriages and a state law preventing same-sex couples from marrying. In other words, the Supreme Court may, on one hand, be poised to issue definitive rulings in favor of sexual orientation equality or, on the other hand, be prepared to split the difference. At the same time, the Supreme Court could simply approach both issues by employing the lowest level of constitutional scrutiny and yet still find both the federal and state laws unconstitutional.

Professor NeJaime recently wrote about the possible Supreme Court review of same-sex marriage laws on Jurist.

Marriage, Direct Democracy and the Supreme Court

By Associate Professor Doug NeJaime

On November 7, 2012, voters in Maine, Maryland, and Washington became the first in the country to approve same-sex marriage at the ballot box, ending a long-running streak of popular votes against marriage equality. On the same day, voters in Minnesota rejected a constitutional amendment that would have prohibited marriage for same-sex couples — something California voters failed to do four years ago. Now that the popular vote has swung the other way, it is not simply the political calculus that has changed but the legal landscape as well. For opponents of same-sex marriage, their streak at the ballot box has supported their arguments against judicial intervention in favor of marriage equality. With these recent results, it becomes increasingly difficult to paint the judiciary — and the US Supreme Court in particular — as an overreaching, out-of-touch institution on the question of same-sex marriage. This new dynamic comes just as the Supreme Court prepares to consider the issue. The Court will soon announce whether it will review cases striking down the federal Defense of Marriage Act (DOMA) and California's Proposition 8.

The entire piece is available on Jurist's Forum. Read the complete piece.

Marriage Equality Populism

By Associate Professor Douglas NeJaime

On November 6, voters in Maine, Maryland, and Washington will decide whether to allow same-sex couples to marry. In 2010, Maine voters repealed the marriage equality law that lawmakers had passed and the governor had signed. This time Mainers will be the first in the country to affirmatively vote on same-sex marriage. In Maryland and Washington, voters are being asked whether to approve or reject the marriage equality laws state lawmakers passed earlier this year. In all three states, recent polls suggest that marriage equality may win.

Of course, this would mark a game-changing moment in the political battle for same-sex marriage. But it would also significantly impact the legal battle raging in the courts. Currently, the U.S. Supreme Court is considering whether to weigh in on both the federal Defense of Marriage Act (DOMA) and California's Proposition 8, the state constitutional ban on same-sex marriage. Advocates at the leading LGBT legal organizations warned against the federal challenge to Proposition 8, worried about its uncertain fate at the Court. Throughout the litigation, they have worked - along with the City and County of San Francisco and prominent constitutional law professors - to frame the case as one about the unique situation in California. The Ninth Circuit agreed, finding that California, which allowed same-sex couples to marry before taking that right away and which provides a comprehensive domestic partnership system with the state-law rights and benefits of marriage for same-sex couples, did not have a legitimate interest in restricting marriage. Under the Ninth Circuit's holding, determinations regarding the constitutionality of other states' marriage bans require additional litigation. LGBT movement advocates, therefore, are hoping the Justices will pass on the invitation to review the Ninth Circuit's decision.

But in the event the Court takes the case, advocates have been doing everything they can to change the landscape of marriage equality before the Court decides. The more states that recognize same-sex couples' relationships as marriages and the more same-sex couples who get married, the more comfortable the Court - or at least Justice Kennedy, who holds the presumptively decisive vote - may be finding state marriage prohibitions unconstitutional. Advocates secured marriage equality in New York in 2011, and they are pursuing the cause in other states, through both litigation and legislation. If Maine, Maryland, and Washington begin to allow same-sex couples to marry, more states will move into the marriage equality column and many more same-sex couples will have legally recognized marriages. This may do much to move the Justices.

Associate Professors NeJaime, Ocen publish in California Law Review

Law review articles by Associate Professors Doug NeJaime and Priscilla A. Ocen appear in the California Law Review issue published in October 2012.

NeJaime's "Marriage Inequality: Same-Sex Relationships, Religious Exemptions and the Production of Sexual Orientation Discrimination" (100 Cal. L. Rev. 1169) looks at the conflict between marriage equality and religious liberty. Ocen's "Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners" (100 Cal. L. Rev. 1239) provides a critical assessment of the practice of shackling female prisoners who are in labor, and the historical undertones of the practice.

First, decide DOMA

By Associate Professor Doug NeJaime

This op-ed originally appeared in the June 8, 2012 edition of the Los Angeles Times.

What will the Supreme Court decide first: whether states can deny same-sex couples the right to marry or whether the federal government can refuse to recognize same-sex couples' valid marriages under state law? Now that the U.S. 9th Circuit Court of Appeals has declined to rehear Perry vs. Brown, the challenge to California's Proposition 8, and the 1st Circuit has ruled Section 3 of the federal Defense of Marriage Act, or DOMA, unconstitutional, that question has taken on an increased sense of urgency. Although Perry may provide more dramatic and compelling litigation, the DOMA cases present the Supreme Court with the best way forward.

First, the DOMA cases introduce fewer political complications, teeing up the relatively limited question of whether the federal government can deny recognition to existing marriages. The plaintiffs have challenged only Section 3 of DOMA, which prevents the federal government from recognizing same-sex spouses. Section 2, which largely restates existing principles regarding interstate recognition, is not at issue. If the court agrees with the 1st Circuit on Section 3, states with marriage equality would have their laws recognized by the federal government. States without marriage equality would be unaffected; such a ruling would neither require them to issue marriage licenses to same-sex couples nor compel them to recognize marriages from other states. The political backlash, therefore, would probably be relatively limited.

Read the complete article here.

Prof. NeJaime reviews Constitutional Redemption: Political Faith in an Unjust World

In a new essay, Constitutional Change, Courts, and Social Movements, to be published in the Michigan Law Review, Professor Doug NeJaime reviews Jack Balkin's influential new book, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press 2011). Balkin is the Knight Professor of Constitutional Law at Yale Law School and is one of the most influential constitutional scholars in the country. In the review, NeJaime argues that by situating courts as important actors in the process of constitutional and social change, Balkin's analysis redeems courts in a field - constitutional theory - that has largely turned away from courts as undemocratic, incapable, and inherently conservative. Ultimately, NeJaime takes his work on law and social movements to Balkin's account of constitutional change, arguing that attention to the way in which social movement lawyers deploy court-based tactics suggests that Balkin's account of courts is more realistic than the pessimistic accounts that have dominated constitutional scholarship recently. While Balkin focuses on social movements' relationship to courts, he does not borrow explicitly from the extensive literature on social movements in sociology. Accordingly, NeJaime suggests a research agenda that uses the theoretical frameworks and empirical insights from social movement theory to develop a more dynamic, context-specific, and contingent account of courts in the process of social change. In the end, NeJaime argues, social movement theory would help constitutional scholars specify both the possibilities and limitations of courts and court-centered tactics.

Prof. NeJaime weighs in on Ninth Circuit's decision on Prop. 8

By Associate Professor Doug NeJaime

In a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Proposition 8, the California constitutional amendment that eliminated the right to marry for same-sex couples, violates the federal Constitution. Writing for the court, Judge Reinhardt decided the case in the most narrow fashion available, basing his holding on the unique situation in California. The state maintains an entirely separate system for same-sex couples (domestic partnership) and provides all the same state-law rights and benefits of marriage through that system. In addition, unlike in other states, same-sex couples enjoyed the right to marry in California and had that right withdrawn by Proposition 8. Based on these unique facts, the court concluded that Proposition 8 fails to meet even the lowest level of scrutiny under the federal Equal Protection Clause. By ruling in a narrow fashion and basing its holding on the reasoning of Romer v. Evans (the U.S. Supreme Court decision striking down Colorado's Amendment 2, which withdrew and prohibited antidiscrimination protections for lesbians and gay men), the Ninth Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale. In effect, the Ninth Circuit's decision allows the Supreme Court to continue the incremental, case-by-case trajectory of marriage for same-sex couples in the United States.

Prof. NeJaime participating in Constitutional Redemptionsymposium

Associate Professor Doug NeJaime is participating in the Constitutional Redemption symposium, a dialogue on Jack Balkin's new book. Other participants include Jack Balkin (Yale), Melissa Murray (Berkeley), Bernadette Meyler (Cornell), Emily Zackin (Princeton), Joe Fishkin (Texas), Dan Solove (GW), Andrew Coan (Wisconsin) and Josh Chafetz (Cornell). The Concurring Opinions event is viewable online. Below is Professor NeJaime's opening post.

Jack Balkin's Constitutional Redemption: A Much-Needed Dose of Optimism

I want to thank Danielle Citron for inviting me to participate in this symposium. And I want to thank Jack Balkin for giving me the great honor of commenting on his wonderful book. In Constitutional Redemption, Balkin offers an important, insightful, and useful corrective to the pessimism that pervades a significant amount of legal scholarship on the left. His constitutional optimism suggests the potential and possibilities of constitutional mobilization.

Balkin's book offers incredible amounts of rich material. He provides a descriptive account of constitutional change, a normative vision of democratic culture, and an interpretative theory aimed at fulfilling the Constitution's promises. In showing how social movements believe in and agitate for constitutional redemption, Balkin redeems the Constitution for legal scholarship, reminding us that the Constitution serves both as a potent symbol of social change and as a vehicle for continued reform. In this commentary, I first want to focus on why I think Balkin's descriptive account is accurate by pointing to two essential moves I see him making. I then want to show Balkin's theory in action in the marriage equality context as a way to translate his analysis into a useful lesson for liberals and progressives.

To my mind, two key moves allow Balkin to see what many others miss and thereby to bridge the often vast divide between constitutional theory and on-the-ground social movement activity. First, Balkin decenters adjudication, and in a sense detaches constitutional claims-making from constitutional decision-making. Of course, Balkin discusses at great length the decisions of the Supreme Court on various significant issues - from race to abortion to labor - and these decisions are crucial to an account of social change. But he analyzes adjudication through the lens of political and movement mobilization, showing the evolution of constitutional principles through the symbiotic relationship among courts, culture, and social movements. (Balkin, p. 63)

Prof. NeJaime publishes op-ed, 'Same-sex marriage: Married but unequal'

Associate Professor Doug NeJaime recently published an op-ed, "Same-sex marriage: Married but unequal," in the Los Angeles Times.

On Sunday, New York will begin issuing marriage licenses to gay and lesbian couples, further complicating the tangled legal mess of same-sex marriage in America.

Why does this complicate things? Consider what happens when legally married couples from New York move to, say, California. They'll see their marriages evaporate, based only on their sexual orientation.

Read the complete op-ed.

Exploding the New Conduct-Status Distinction: Why Judge Walker's Sexual Orientation and Same-Sex Relationship are One and the Same

By Associate Professor Doug NeJaime

This is another installment in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

In denying the Proposition 8 proponents' motion to vacate Judge Walker's ruling, Judge Ware clearly got it right as a matter of judicial conduct. But he got it right in another way -- one that's more subtle and yet more significant: Judge Ware rejected the proponents' slippery distinction between sexual orientation and same-sex relationships.

In seeking to vacate Judge Walker's ruling that Proposition 8 is unconstitutional, the Proposition 8 proponents argued that they weren't challenging Judge Walker's impartiality based merely on his sexual orientation; rather, they were bothered by his long-term same-sex relationship. A gay judge, they argued, could decide a marriage equality case; a gay judge in a relationship, on the other hand, could not.

In making this crafty argument, the proponents relied on a distinction without a difference. Sexual orientation is by definition a relational category -- one's sexual orientation can only truly manifest itself with regard to another person (or at least the idea of another person). Therefore, to argue that Judge Walker should recuse himself based on his same-sex relationship is the same as arguing that he should recuse himself based on his sexual orientation. Judge Walker enacts and lives out his sexual orientation by having a relationship with another man.

This distinction between gay identity and same-sex relationships appears to be the new conduct-status distinction harming lesbians and gay men, supplanting its predecessor that distinguished between same-sex sex and sexual orientation. Bowers v. Hardwick, the U.S. Supreme Court decision upholding Georgia's anti-sodomy law, treated same-sex sex as mere conduct, undeserving of constitutional protection. Lawrence v. Texas overturned that ruling and in the process exploded the distinction between same-sex sex and gay identity. For Justice Kennedy, who wrote the majority opinion, and Justice O'Connor, who wrote a concurrence, a prohibition on same-sex sex (conduct) undeniably targeted lesbians and gay men based on their status. Accordingly, the Court rejected the conduct-status distinction that had served to deny lesbians and gay men constitutional protection for so long.

Prof. NeJaime guest blogs about Perry on Balkinization

By Associate Professor Doug NeJaime

In anticipation of his presentation during a session on "The Constitutional Politics of Equality" during the upcoming conference at the University of Texas School of Law, The Constitution in 2020: The Future of Equality, Associate Professor NeJaime wrote the following blog post for Balkinization.

Popular accounts and media commentary on the federal suits challenging the Defense of Marriage Act (DOMA) and California's Proposition 8 focus largely on the inevitable march toward marriage equality. Implicit in such accounts is a claim about the impact of favorable court decisions on the LGBT rights agenda. After a district court victory in the Massachusetts DOMA case and the more recent announcement by Attorney General Holder that DOMA is unconstitutional under an appropriately heightened standard, the toppling of the federal ban seems imminent. After the district court's decisive blow to Prop. 8 in the Perry v. Schwarzenegger litigation and a Ninth Circuit oral argument before a generally receptive panel, commentators have focused on the impact of positive judicial intervention on same-sex couples in California.

Read the complete post at Balkinization.

Proposition 8 and Standing: The Waiting Game

By Associate Professor Doug NeJaime

Today, the Ninth Circuit Court of Appeals issued two crucial orders in Perry v. Schwarzenegger, the federal challenge to California's Proposition 8. But rather than get to the merits of the question -- whether California's denial of the right to marry to same-sex couples violates federal equal protection or due process principles -- the panel dealt with threshold questions of standing. And at least one member of the court, Judge Reinhardt, seems frustrated by the roadblocks standing between the court and the merits.

In a per curiam opinion, the panel asked the California Supreme Court to weigh in on the question of standing. Specifically, the judges asked the state court to determine whether "the official proponents of an initiative measure possess either a particularlized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so." In other words, now that the California Governor and Attorney General refuse to defend the marriage ban, can the groups behind Proposition 8 step in to defend it? If the Proposition 8 proponents do not have a state-created right to defend their intiative, then the Ninth Circuit would be compelled to dismiss the appeal for lack of standing and leave the substance of marriage equality for another day.

Perry oral argument wrap-up: All three judges interested in the narrow case of California

By Associate Professor Doug NeJaime

Associate Professor Doug NeJaime wrote about the potential implications of Perry v. Schwarzenegger in a post last week. He live-Tweeted today's oral arguments.

While the first hour of oral argument in Perry focused on the question of standing, the second hour moved on to the meat of the case: the substantive merits regarding Prop. 8 and same-sex couples' right to marry. And here all three judges seemed genuinely interested in a narrow framing of the case--as one about whether California has a legitimate interest in taking away the label "marriage" from lesbian and gay Californians while leaving intact a comprehensive domestic partnership regime that provides the rights and benefits of marriage. In other words, can the Ninth Circuit rule that Prop. 8 is unconstitutional without directly impacting marriage restrictions in other states? Indeed, even Judge Smith, the most conservative judge on the panel, pointedly asked Charles Cooper, attorney for the Prop 8 proponents, whether one can find that California lacks a rational basis for the law without also finding that other states lack a rational basis for their marriage bans.

This narrow framing does not appear to be the plaintiffs' strategy of choice. They have consistently argued that lesbians and gay men enjoy a fundamental right to marry under the federal Due Process Clause and that classifications based on sexual orientation should (like race) be subject to strict scrutiny under the federal Equal Protection Clause. Yet various amici have been pushing a more limited framing of the case. The judges appear to have taken these arguments seriously, pressing the lawyers on the complexities of the California-specific reading. Although Ted Olson, arguing for the plaintiffs, maintained his position in favor of a more sweeping ruling, he nonetheless indulged the judges' interest in the more limited reading and set out a compelling argument that Prop. 8 fails a less searching level of scrutiny. And Terry Stewart, representing the City of San Francisco, argued forcefully that the Ninth Circuit could find Prop. 8 invalid under rational basis review because it constitutes nothing more than a classification for its own sake.

The panel's intense focus on the California-specific reading of the case made Romer v. Evans, the U.S. Supreme Court decision invalidating Colorado's Amendment 2, especially central to the argument. And, perhaps unsurprisingly, it was Justice Kennedy who wrote for the majority in that case. The Ninth Circuit panel, or at least Judges Reinhardt and Hawkins, may be preparing to craft a decision favorable to same-sex couples that relies explicitly on Justice Kennedy's earlier reasoning. This would deliver the issue to the U.S. Supreme Court in a way that allows Justice Kennedy to continue where he left off in Romer.

If this less sweeping, more California-centric understanding of the case prevails at the Ninth Circuit, the U.S. Supreme Court would be directly presented with a way to rule in favor of lesbian and gay equality while leaving intact the discriminatory laws of the majority of states. The bigger question of a nationwide right to marry for same-sex couples would continue to wait for its day in court.

Marriage equality's road to the Court

By Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.