C&S LLPOn March 26 and 27, 2013, the U.S. Supreme Court heard oral arguments in two potentially historic cases asking whether the equal protection guarantees of the U.S. Constitution prohibit the federal and/or state governments from excluding same-sex couples from the definition of marriage. Predicting how the Supreme Court may rule based upon the arguments made in briefs and oral arguments is notoriously difficult and a bit like divining answers from visions in a crystal ball. Nevertheless, all talk has turned to how the Court might resolve the important and sometimes overlapping issues. What follows is a quick look at the arguments presented and two humble observers’ perception of the more likely possible outcomes.

Historical Context

In 1967, the U.S. Supreme Court ruled in Loving v. Virginia that states could no longer ban marriages of a man and a woman of different races. In support of Virginia’s law making interracial marriage a criminal act, the state had argued, “[M]arriage has traditionally been subject to state regulation without federal intervention,” and  “the scientific evidence” as to the implications of interracial marriage “is substantially in doubt and, consequently, [the] Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages.” The Court rejected these arguments. Because the Virginia statute
“proscribe[d] generally accepted conduct [only] if engaged in by members of different races” the Court determined it should “be subjected to the most rigid scrutiny.” In no uncertain terms, the Court stated, “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification. . . . There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

In 1993, the Hawaii Supreme Court became the first court in the United States to say that restricting the freedom to marry solely based on sexual orientation had to satisfy the same rigorous test as marriage discrimination based on race. This decision, which was later overturned by the state legislature, directly led to Congress’s passing of the Defense of Marriage Act (“DOMA”) in 1996. DOMA Section 3 provides, “In determining the meaning of any [federal law or regulation], the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Within that context, the two cases argued before the U.S. Supreme Court last week arise.

United States v. Windsor

Edith Windsor and Thea Spyer, her partner of more than forty years, lived in New York and married in Canada in 2007. Spyer died in 2009, and she left her estate to Windsor. Windsor paid more than $350,000 in federal estate taxes, then filed a refund claim under the federal law generally exempting from federal estate taxes property passing from a decedent to a surviving spouse. The Internal Revenue Service denied her refund claim after determining that Windsor did not qualify as a surviving “spouse” under DOMA Section 3.

Windsor then filed suit in federal district court claiming that DOMA Section 3 is unconstitutional under the Fifth Amendment to the U.S. Constitution. The U.S. Department of Justice declined to defend the constitutionality of the statute on behalf of the United States, so a five-member group of leaders from the House of Representatives—the Bipartisan Legal Advisory Group of the U.S. House of Representatives (“BLAG”)—intervened to defend DOMA (though the United States remained a party to the litigation).

The federal district court entered a summary judgment in favor of Windsor on the ground that DOMA Section 3 violates the equal protection guarantee of the Fifth Amendment. The court ordered the United States to pay Windsor $363,053 plus interest. The United States and BLAG appealed to the U.S. Court of Appeals for the Second Circuit. The court of appeals determined that DOMA Section 3 is subject to heightened scrutiny, held that it violates the Fifth Amendment’s equal protection guarantee, and affirmed the judgment for Windsor.

The United States, BLAG, and Windsor each filed petitions for writ of certiorari with the Supreme Court. The Court granted the petition of the United States and is holding the others.

Standing Issues and Likely Outcomes

The Court has two threshold standing questions to answer before it reaches the merits–one with respect to the government’s petition and one with respect to BLAG.

First, the Court must determine whether the government’s agreement with the court of appeals that DOMA is unconstitutional deprives the Supreme Court of jurisdiction to decide the case on the merits. Article III, Section 2 of the Constitution provides that the “judicial Power” of the United States “shall extend to all Cases, in law and equity, arising under [federal law]” and “to Controversies to which the United States shall be a party.” In Camreta v. Greene, the Court summarized this “case or controversy” requirement as meaning that the parties must have a real stake in the outcome, so the case maintains “that concrete adverseness which sharpens the presentation of issues.”

Whether the government, which has chosen to enforce a statute but not defend its constitutionality, has standing to appeal a judgment with which it agrees is another question. In Immigration & Naturalization Service v. Chadha, a similar case from 1983, the Court held that where the government and the plaintiff agree as to the proper outcome on the merits, there nevertheless is a “concrete adverseness” if the court’s decision would “have real meaning.” (Interestingly, the Court approvingly quoted from much of the underlying opinion in that case, which was authored by then-Judge Anthony Kennedy.)

In that case, the Court concluded the petitioner had standing, because the Court’s decision would determine whether the government would deport the plaintiff.  As in Chadha, the Court’s decision in Windsor will have real meaning: it will determine whether the government continues to deny benefits to married couples of the same sex. During oral argument, four or five justices seemed quite comfortable that the government has standing in this case. Thus, despite the unusual posture of the case, the Court likely will conclude the government has standing to pursue its petition.

The second threshold question is whether BLAG has standing. As a matter of practicality, if the Court determines that the government has standing to pursue its petition, the question of BLAG’s standing will not matter because it can “ride piggyback” on the government’s standing. In the event the Court determines the government lacks standing, it will have to evaluate whether BLAG has standing to bring its petition. In Arizonians for Official English v. Arizona, the Court said, “Congress [is] a proper party to defend [the] measure’s validity where both Houses, by resolution, had authorized intervention in the lawsuit.” Of course, the distinguishing factor in Windsor is that the House only (or, to be precise, a five-member leadership group purporting to represent the House) has intervened to defend DOMA, not both Houses of Congress. During oral argument, many of the justices did not seem convinced that BLAG has standing to defend DOMA, but how the Court ultimately might rule on that issue is hard to predict based on prior precedent.

One way or another, the Court likely will conclude it has jurisdiction to reach the merits. The question then becomes whether DOMA Section 3 is constitutional.

Merits Issues and Likely Outcomes

Windsor challenges DOMA Section 3 under the equal protection guarantee of the Fifth Amendment. To pass muster under the equal protection analysis, DOMA must serve some governmental interest. (Whether that governmental interest must be compelling, substantial, or just legitimate determines the level of scrutiny with which the Court reviews the equal protection challenge. For a thorough discussion of the various standards of review, see Lyle Denniston’s post on SCOTUSblog.) As anticipated, the “liberal wing” of the Court (Justices Ginsburg, Breyer, Sotomayor, and Kagan) seemed convinced during oral argument that no matter the level of scrutiny, DOMA Section 3 violates the constitutional guarantee of equal protection.

However, the all-important fifth vote, Justice Kennedy, did not seem entirely convinced that DOMA Section 3 is unconstitutional on equal protection grounds. Instead, Justice Kennedy seemed more interested in the federalism problem posed by DOMA Section 3.

The Tenth Amendment expressly limits Congress’s authority to enact legislation in areas traditionally reserved to the states. The Court has said before, “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not the laws of the United States.” Justice Kennedy asked several pointed questions as to whether Congress had the authority to enact DOMA on federalism grounds, and Chief Justice Roberts and Justice Alito seemed at least mildly interested in the argument.

Though Justice Kennedy might join the “liberal wing” in striking down DOMA on equal protection grounds, based on the questions at oral argument, it seems more likely that he (and perhaps other justices) would strike it down on federalism grounds. In that case, the Court would strike down DOMA Section 3 but based upon two different rationales, neither of which garners a full majority of the Court.

Most interesting, if the Court issues a split rationale decision, it could result in a “voting paradox.” The four liberal justices may vote that DOMA violates equal protection but not federalism. Justice Kennedy (and perhaps Chief Justice Roberts and Justice Alito) may vote that DOMA violates federalism but not equal protection. Justices Scalia and Thomas may vote that DOMA violates neither. In that case, 6 justices would have voted that DOMA does not violate federalism, 5 justices would have voted that DOMA does not violate equal protection, but 7 justices would have voted that DOMA is unconstitutional. Seeing how the votes tally up will be fascinating

Hollingsworth v. Perry

In 2000, Californians passed an initiative statute defining marriage as a relationship between a man and a woman. In May 2008, the California Supreme Court held that statute to be in violation of the California Constitution’s equal protection provisions. In response to this decision, proponents financed, gathered the necessary signatures, and otherwise supported placing on the ballot an initiative measure (“Proposition 8”) to amend the California Constitution to recognize only heterosexual marriages as valid. In November 2008, Californians voted to adopt Proposition 8, which amended the California Constitution to provide that “[o]nly marriage between a man and a woman is valid or recognized in California.”

Two same-sex couples filed suit in federal district court arguing that Proposition 8 violated the equal protection provision of the Fourteenth Amendment of the U.S. Constitution. The State of California chose not to defend the constitutionality of Proposition 8, so the individual proponents of the initiative measure intervened to defend it. After a trial, the district court ruled that Proposition 8 violates the Fourteenth Amendment. The proponents of Proposition 8 appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.

The Ninth Circuit certified a question of California state law to the California Supreme Court: “[U]nder California law, [do] the proponents of an initiative measure [have standing] 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?” The California Supreme Court unanimously responded in the affirmative. The Ninth Circuit then considered the merits of the proponents’ appeal and determined that Proposition 8 is unconstitutional because it took away from same-sex couples the official designation of “marriage” while leaving in place all of its incidents through domestic partnerships.

The proponents then filed a petition for writ of certiorari with the Supreme Court, which the Court granted.

Standing Issues and Likely Outcomes

Just as in Windsor, the Court must answer a threshold standing question before reaching the merits in Hollingsworth.

Generally speaking, private citizens do not have Article III standing to seek vindication or faithful execution of a law. In Karcher v. May, the Court concluded that a state can authorize someone other than state executive officials to represent the state’s interests in court. According to the California Supreme Court’s answer to the Ninth Circuit’s certified question, California law does assign to initiative proponents the authority to defend the constitutionality of a law passed by initiative when the state officials who ordinarily would assume that responsibility choose not to do so.

During oral argument, Chief Justice Roberts voiced doubts about the propriety of allowing a state to legislatively grant Article III standing to individuals who otherwise would not have standing. Justices Breyer, Sotomayor, and Kagan all voiced concerns that the person designated by the state might not be the agent of the people of the state. Though the advocates offered good arguments that California public officials could easily circumvent the very purpose of the initiative process by simply refusing to defend the validity of any law passed by initiative, many on the Court expressed reservations about the proponents’ standing.

If the Court concludes that the proponents lack standing, it would vacate the decision of the Ninth Circuit, which would leave in force the decision of the district court. The district court issued an injunction prohibiting the official defendants from applying or enforcing Proposition 8. Generally speaking, injunctions bind only the parties to the action (such that California would only be prohibited from enforcing Proposition 8 against these plaintiffs, not all same-sex couples across California). Thus, California could take the same enforce-but-don’t-defend approach it took prior to this case, and other same-sex couples besides the plaintiffs would still be denied marriage licenses. However, the district court also issued a declaratory judgment proclaiming that Proposition 8 is unconstitutional on its face. This proclamation may be sufficient to render Proposition 8 unenforceable across the state of California. (For a discussion of the various options available to California residents and officials in the event the Court rules this way, see Marty Lederman’s post on SCOTUSblog.)

Merits Issues and Likely Outcomes

If the Court reaches the merits, the question then becomes whether Proposition 8 violates the equal protection provision of the Fourteenth Amendment. The equal protection arguments in Hollingsworth are similar, though not identical, to the arguments raised in Windsor discussed above. (For a more thorough discussion of the equal protection arguments in Hollingsworth, see Amy Howe’s post on SCOTUSblog.)

Though the case arose out of California’s treatment of same-sex couples, the plaintiffs have asked the Court to issue an opinion stating that any such law in any state violates the equal protection provision of the Fourteenth Amendment. The liberal wing of the Court seemed ready to make such a ruling. However, some of the justices—Justice Kennedy, and also to a certain extent Justices Alito and Sotomayor—seemed interested in invalidating Proposition 8 on narrower grounds, possibly restricted to California only. None of the justices, however, latched onto the government’s “middle ground” approach of invalidating same-sex marriage bans only in the eight states that allow domestic partnership benefits.

Predicting what the Court might do with the Proposition 8 case should it reach the merits is a difficult business, but the relationship between this case and the DOMA case may be the greatest indicator. If a majority of the Court invalidates DOMA on equal protection grounds, the Court in all likelihood would invalidate Proposition 8 on equal protection grounds, too. (In that case, the Court likely would issue an opinion in the DOMA case but “GVR” the Proposition 8 case—grant the petition for writ of certiorari, vacate the opinion of the Ninth Circuit, and remand the case for further proceedings in light of its decision in Windsor.)

Given the tenor of the oral arguments, it seems unlikely that five justices will vote to invalidate DOMA on equal protection grounds. In the likely event the Court invalidates DOMA on split rationales (in other words, the equal protection rationale does not garner five votes), it is exceedingly unlikely that five justices will vote to invalidate Proposition 8 on equal protection grounds. How the Court would rule in the Proposition 8 case then is anybody’s guess.


As Justice Sotomayor noted during oral argument, the Court allowed the issue of interracial marriage to percolate through the legislatures and the courts for more than 50 years before holding that interracial marriage bans violate the equal protection provisions of the U.S. Constitution. Indeed, the Court in 1883 ruled that Alabama’s anti-miscengenation statute was constitutional—a ruling that was overturned in part in 1964 (holding that the “no cohabitation” provision of Florida’s anti-miscegenation law was unconstitutional) and then fully in 1967 (unanimously holding that prohibiting interracial marriage violated the equal protection clause).

Justice Kennedy’s sentiment expressed during oral argument may be most telling: “[T]he problem with the case is that [the petitioners are] really asking . . . [the Court] to go into uncharted waters, and you can play with that metaphor, there’s a wonderful destination, it is a cliff.” Though he has authored some important gay rights opinions (Lawrence and Romer, for example), he and the rest of the Court may not be ready to issue an equal protection decision on same-sex marriage of the nature of the Court’s opinion on interracial marriage in Loving v. Virginia.

Deborah Alley Smith and Abbott Marie Jones are attorneys with Christian & Small LLP in Birmingham, Alabama. Debbie is the firm’s managing partner and head of the appellate litigation practice group. Recognized for her appellate litigation expertise by Super Lawyers, The Best Lawyers in America, and Benchmark Litigation, Debbie has successfully briefed and argued cases in the U.S. Supreme Court, the intermediate federal appellate courts, and the Alabama state appellate courts. Abbott is an associate in the firm’s appellate litigation practice group. She is recognized as a rising star in appellate litigation by Super Lawyers, and she writes a quarterly update on the U.S. Supreme Court for Stare Decisis, a Primerus publication.