Sunday, June 16, 2013

Tomorrow is Decision Day.

Tomorrow is the 17th of June. There will be only one more Monday in June and the current Term of Court ends when the last decision of the October 2012 Term is filed. The Court does not convene again until the first Monday of October. Absent a special decision day it is quite probable that the Court will file its opinions in Hollingsworth vs Perry and US vs Windsor on either tomorrow, the 17th or on the following Monday the 24th of June. There are at least two other hot button cases to be decided before the term ends: the affirmative action case and the case out of Shelby County Alabama seeking to toss section 5 of the 1965 Voting Rights Act. My guess is that tomorrow is going to be Decision Day for both the Hollingsworth and Windsor cases. The court traditionally files its opinions on related but separate cases on the same day. So I expect both cases to be filed or, probably more accurately, released on the same day. I am not as familiar with the facts and arguments in the Windsor case as I am in the Hollingsworth case so I will limit my comments to Hollingsworth only.
Hollingsworth vs Perry arose out of California's Proposition 8 at the 2008 General Election which amended the state's constitution to take away the right of Californians to marry the person of their choice and welded the so called 'traditional marriage' model into the California's constitution. There are three things that SCOTUS could do with this case.
First of all it could render a global decision that either ties marriage to privacy rights like the court's prior decisions on birth control (Griswold vs Connecticut) and a woman's right to choose whether she will carry a pregnancy to term (Roe vs Wade) or on the validity of statutes that outlawed interracial marriages (Loving vs Virginia) and hold that the states cannot interfere with personal life choices on either or both of those grounds . The Court could adopt a global decision denying gay and lesbian people equal access to the legal benefits of marriage. If the courts adopts the view(s) of the petitioner proponents of the traditional model it will have some difficult writing and persuading to do in the face of cases like Loving vs Virginia that held that laws against interracial marriage violated the Fourteenth Amendment's equal protection clause. There will also be a major PR issue reconciling a denial of marriage equality based on the existence of non-marriage fixes such as California's Registered Domestic Partner statute which gives RDPs all the rights, responsibilities and benefits of marriage other than the designations husband and wife while ignoring what SCOTUS said about the separate but equal fiction cobbled onto Fourteenth Amendment jurisprudence by Plessy vs Ferguson: essentially that it was nonsense. A decision adopting the positions of either the Petitioners or the Respondents will be of great scope and will go to to the heart of how society is organized is so fundamental that it should not be by a narrow one vote majority but i should be unanimous. Chief Justice Warren realized that and the great school desegregation case Brown vs Board of Education was a unanimous decision. We should ask no less of the Court in rendering such a major case as this one. If the marriage equality case is rendered by a less than unanimous Court it will suffer the same as Roe: continual attack by partisans on the losing side of the case. Some that will divide the Nation for decades to come. I think that Justice Kennedy who has been very understanding of the the issues involved in gay rights litigation and who is generally agreed to be the 'swing vote' will withhold his vote to render any 5-4 decision in favor of nationwide marriage equality. I also suspect that Chief Justice Roberts will also not want to lend his vote to a narrow 5-4 decision holding for the proponents of Proposition 8. I doubt that either side in this great dispute can muster the five votes necessary for for either such earth-shaking nationwide decision.
Another possible outcome would be for the SCOTUS to dismiss certiorari on lack of standing grounds under Article III of the Constitution. A dismissal on this basis would effectively uphold Proposition 8 because it would vacate the Court of Appeals decision previously filed in the case and it would vacate the decision and judgment of the District Court declaring Proposition 8 to be unconstitutional. The reason for this is that if the petitioner at SCOTUS did not have standing to ask for certiorari in the Supreme Court it also would be lacking, ipso facto, in both the Ninth Circuit appeal and in the District Court lawsuit as well. Those cases would have to be dismissed also. Federal courts are almost without exception courts of what is called “limited jurisdiction” and the judicial power of the United States has to affirmatively and expressly appear in Article IIII or the federal judiciary is without power to act at all in the case. A finding there is no standing would effectively end all of the attacks on Proposition 8. I would think that this view would have a chance of prevailing but for the fact that the original panel of 9th Circuit judges certified a question of standing under state law to the California supreme court and that court unanimously held that in a case where California's constitutional officers, the Governor and the Attorney General, who are charged by law with defending an initiative measure enacted by the electors fail and refuse to defend the act under attack because they believe it is unconstitutional that the proponents of the measure have standing under California law to defend the measure in state courts. That is close to but not identical with Article III standing. In California's trial court system, the superior court is a court of general jurisdiction that has original power to hear and decide any and all cases except those which the legislature has been expressly removed from the superior court's jurisdiction so that the superior court can not hear and determine the case. The federal district courts being courts of limited jurisdiction only have the power to hear and determine cases over which it has been expressly granted jurisdiction either by the Constitution or Congress. The plaintiffs, Perry et al in the federal court lawsuit brought their case in federal court because they urged that Prop 8 violated the Equal Protection Clause of the 14th Amendment therefore the district court had jurisdiction because it was a 'federal question'. The also asserted that they had Article III standing because they had skin in the game and alleged that it was their federal constitutional rights that were being denied. The same cannot be said for the proponents of Prop 8. Their interest in this case, their skin in the game so to speak was more akin to the interest that every citizen and taxpayer has in seeing that the laws are enforced. The courts have always held that the interest that each of us possesses in that regard is so minuscule that it's non-existent and does not confer Article III standing. The Court could find that because the proponents of Prop 8 could allege no particular injury to themselves they did not have standing to defend the case in federal court. SCOTUS to dismiss on standing grounds would have to do either one of two things. Either it would have to distinguish standing as discussed by the state supreme court and found to exist in these Prop 8 proponents as different from Article III standing. That could be done but it might appear to the public to be a nonsensical exercise in the parsing of words and thus adversely affect the moral authority of SCOTUS. The other supporting logic in such a standing opinion is that SCOTUS would just be interfering with the judgment on the certified question of state law much like SCOTUS did in 2000 in Bush vs Gore when it overturned the decision of the Florida supreme court on the question of who won the state's electoral votes. The illogic of that decision has troubled SCOTUS and its moral authority for the last 13 years much like it was a bell tied to the tail of a dog or a cat. Based on these  very real considerations  I think that SCOTUS will not adopt this position and essentially follow the lead of the California court on the standing issue or just ignore the issue entirely.
The third possible outcome and the one I believe will prevail as to Proposition 8 is that SCOTUS will in fact DIG the case. Certiorari is a discretionary writ. It is not an appeal because generally there is no right of further appeal from an adverse decision in an appeal from the district court. The court of appeal in this case had exclusive appellate jurisdiction. The only way Prop 8 proponents could  launch themselves into the Supreme Court was to convince four of the nine justices to issue a Writ of Certiorari. The only thing required for a grant of certiorari is the affirmative vote of four of the nine justices. Five justices may later say that they don't' want to hear the particular case for whatever reason. DIG is lawyerese for Dismissing Certiorari as Improvidently Granted. The effect of DIGing the case would be to reinstate the opinion of the 9th Circuit upholding the decision of the District Court in declaring Prop 8 to be unconstitutional. The reason for this is quite simple and involves no effort to distinguish anything from anything else as a dismissal for lack of Article III standing would require. The case as litigated in the San Francisco district court involved a simple fact pattern. California's supreme court found under the California constitution that marriage is a fundamental right and  that denying same gendered people the right to intermarry was an interference with a fundamental right supported by neither the required compelling state interest nor even the lesser standard of a rational basis. Proposition 8 six months after the California supreme court's 4-3 decision in The Marriage Cases holding that marriage equality existed in California later removed that right and declared that in California only opposite gendered people would intermarry. Proposition 8 was held valid by a subsequent ruling of the California court and there was no discussion of any federally guaranteed right in either opinions of the California court. The issue presented to the district court by the plaintiffs and later to the circuit court on appeal was a question of whether California's doing what it did in November of 2008 was lawful under the US Constitution. Since Proposition 8 was passed public opinion in California now shows a substantial majority in favor of marriage equality. Furthermore the last four times that the issue was on the ballot anywhere in this nation the electorate has supported marriage equality in all four of those contests. SCOTUS knows this. They are not going to ignore this march toward equality. They are going to want to see it proceed. Since the facts of Hollingsworth are unique in this dispute and really only apply to the California fact pattern it really should only apply within California and to the facts and procedural history of this case, DIGing the case would cause minimal damage to the proponents of Prop 8 and achieve some justice at least in California. It would also allow the progress of democratization of our society to grow and prosper.
Thus I suspect that SCOTUS is going to DIG the Proposition 8 case and allow everyone to claim to be the victor.

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