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Heightened Scrutiny of John Roberts: He Says He Will Vote to Uphold the University of Texas Affirmative Action Admissions Policy Because White Applicants Have Political Power. Seriously.

WASHINGTON — As the justices of the Supreme Court struggled with the question of same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.

But momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.

The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.

Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman suing to recover federal estate taxes she would not have had to pay had her spouse been a man.

“You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked the lawyer.

For purposes of the law, said the lawyer, Roberta Kaplan, “I would, your honor.”

“Really?” the chief justice asked skeptically. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Success on Political Front Can Be Setback in Gay Rights, Peter Baker, New York Times, yesterday

The movement-conservative legal crowd that began to gain a stranglehold on the federal court system the early 1980s, and that is now represented by four, and in deeply important respects five, Supreme Court justices, has thoroughly transformed the law and court system.  It has done so mostly under the public’s radar screen and so has had a nearly unfettered free ride.  But now, little by little–albeit by too little–the free ride is becoming slightly less unfettered, as the Supreme Court, if not the lower federal courts, is garnering meaningful and detailed attention in some important respects.  

Call it heightened scrutiny.  Or maybe even strict scrutiny.  In any event, at least with respect to culture-wars cases at the Supreme Court, it no longer is rational-basis scrutiny.  All of these are terms that, although unfamiliar to non-lawyers, are quite familiar to John Roberts. And they explain, as I will below, the purpose of that above-quoted colloquy.  

There is now some cost in public opinion, not only to the overt jaw-dropping statements made by Antonin Scalia but also to the slightly more subtle (yet equally stunning to those who know the code) declarations by our Supreme Court’s chief justice during oral arguments.  Statements jolting enough to garner publicity and therefore to provide public insight into the true, hell-bent goals of this movement.  

Scalia and Roberts are the Paul Ryan of the federal judicial branch.  They and their compadres have a roadmap, and Roberts has now joined Scalia in openly revealing its intended final destination.  Except that this duo is remarkably careless in presuming that they can control that final destination.  They can’t.

Here’s what Roberts was getting at: Under the Supreme Court’s longstanding equal protection jurisprudence, there are three levels of equal-protection “scrutiny” that courts must accord laws, government policies or government officials’ actions that discriminate against particular groups or individuals, or that favor one or another group.  The highest level of scrutiny is–or, more accurately, originally was–reserved for “invidious” groups, such as racial, ethnic, or religious minorities, that suffered broad societal discrimination. Laws or government policies or actions that discriminated against these groups would be subject to “strict” constitutional scrutiny, which means that they would pass constitutional muster only if there was a “compelling governmental interest” that the law or policy furthered.  That standard is almost impossible to meet, so most such laws or policies were stricken as unconstitutionally discriminatory.  

Strict scrutiny also is the level of constitutional scrutiny applied to laws that infringe upon what are considered “fundamental” rights–rights that are stated expressly and specifically in the Constitution, and rights that the Supreme Court has recognized under a doctrine derived from the Fifth and Fourteenth amendments, called “substantive due process.”

An intermediate level of scrutiny–”heightened” scrutiny–applies to government discrimination (denials of equal protection of the laws) for less invidious groups that nonetheless do suffer societal discrimination.  Age discrimination, for example.  And gender discrimination.

Government discrimination that does not fall into one of those two categories is accorded, and permitted, very little scrutiny.  Specifically, any stated “rational basis” for the law or policy will suffice as sufficiently constitutional.  

An early justification by the Supreme Court for categorizing a group as protected from discriminatory laws or government policies or actions under strict, or even heightened, constitutional scrutiny was that –you guessed it–the group lacked political power and therefore could not fend off discriminatory legislation or policies through the political system.  Thus, the Roberts comments above.

But, mainly thanks to the efforts of the movement-conservative legal crowd of which John Roberts has always been a charter member, the importance of a group’s political power–or lack thereof–is most certainly no longer a consideration in applying strict or heightened scrutiny to discriminatory government actions.  Unless, of course, white high school seniors or white government-contractor applicants have no political power because, well, they’re white.  Or unless Christian evangelicals and Catholics have no political power because they are Christian evangelical or Catholic.  Or because they are religious.

And, yes, a favorite genre of the current movement-conservative law folks during the last three decades has been the novel use of equal protection law as a means to circumvent the First Amendment’s Establishment clause–the clause in the Constitution that bars the government from favoring one religion over others, or from favoring religion in general.  The First Amendment’s Free Exercise clause wasn’t sufficient, because, well, there really isn’t a First Amendment right to commandeer the government in the service of your own practice of religion.  But if the government is going to allow non-religious groups to do something in particular, it must allow religious groups to do the same, as long as doing the same doesn’t force others to participate in, or be present at, your religious exercise, courtesy of the government.  Even if the government has a rational basis for not allowing it.  

So John Roberts wants to reinstate the lack-of-political-clout requirement for any level of equal protection scrutiny other than the rubber-stamp rational-basis level of equal protection scrutiny.  But only for the purpose of denying same-sex couples federal spousal benefits such as estate tax exemptions and Social Security survivors’ benefits.  And for the purpose of allowing states to prohibit same-sex marriage.  But rest assured that Abigail Fisher, the unsuccessful University of Texas applicant who is white and hails from an upscale Houston suburb, and who probably was not asked to show a birth certificate when she registered to vote at the age of 18, will not lose her case because political figures are falling over themselves to endorse her side of the case, and have been, for decades longer than political figures have been falling over themselves to endorse the same-sex-marriage plaintiffs’ side of their case.  That is, for decades before, say, a month or two ago.

It’s John Roberts’ bad luck that the affirmative action case will be decided within weeks, or perhaps just days, of the same-sex-marriage cases.  I do think there’s another name, though, for Roberts’ luck, if not for Roberts himself: poetic justice.

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SCOTUSblog’s Tom Goldstein says a same-sex-marriage victory in DOMA almost precludes a same-sex-marriage victory in the Prop 8 case. I disagree.

Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases.  The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation.  The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.

The arguments would be easier for the public to understand if they had occurred in reverse? Maybe.  But I think I understand them well enough to disagree the depth of that tension in this Court is irresolvable.  I say that, even recognizing that the operate words in Goldstein’s statement are “in this Court.”  By which he means, this Court with it’s membership.

Goldstein explains:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.”  That role, the Court will rule, is historically reserved to the states.  So DOMA is a federalism [i.e., states’-rights] case. …

But if DOMA is going to be decided as a federalism case, Hollingsworth [the California Prop. 8 case] becomes a much harder case for the plaintiffs [who are challenging Prop. 8 as violative of individual rights].  That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

Except that that ruling in Windsor would imply that California should have a parallel right to decide the definition of marriage for itself under the Tenth Amendment, which is the main states’ rights provision of the Constitution.  Such a ruling in Windsor would say nothing at all about the Fourteenth Amendment, which is the main individual-rights provision of the Constitution vis-a-vis the states.

The Tenth Amendment does not trump or negate the Fourteenth Amendment–although I acknowledge that Kennedy and other uber-states’-rights proponents do claim sometimes that it does.  Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate.  But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches.  And, presumably, to state voter referendums.  Such as Prop. 8.

I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases.  The DOMA case is a Tenth Amendment case.  The Prop. 8 case is a Fourteenth Amendment case.  Just as with state criminal laws, a state law may violate the Fourteenth Amendment’s due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre–criminal law, family law, marriage law, for example.  The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals’ rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals’ rights.  

Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.

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Tom Goldstein of SCOTUSblog tweets, during the short break after the first hour of argument in the California Prop 8 case, that …

Breaking: 1st update- #prop8 unlikely to be upheld; either struck down or #scotus won’t decide case. More in 30 mins.
This is the more important of the two gay-marriage cases.  Tomorrow’s argument will be on the constitutionality of the federal Defense of Marriage Act (DOMA), but almost no one (best as I can tell), thinks the Court will uphold the constitutionality of that Act.  The real suspense* is in the Prop 8 case.  So ….

UPDATE: Here’s Tom Goldstein’s post-argument report.

SECOND UPDATE: This one’s from Reuters. It seems to me that the Roberts comment quoted in the article is very significant. In a good way.

THIRD (and final, for at least a few hours) UPDATE: Here’s SCOTUSblog’s Lyle Denniston’s take.  He’s my (and many, many others’) go-to guy on all things Supreme. He seems to think that they’ll simply dismiss the Supreme Court case, saying that the petition grant was “improvidently granted,” leaving the Ninth Circuit opinion intact.

That would leave intact the Ninth Circuit ruling–which was that, because California already had been allowing same-sex marriage before Prop. 8 was approved in 2006, in localities that approved it, the state could not suddenly render those marriages null and void.  Doing so would violate the Fourteenth Amendment’s Due Process clause.  And since some gays already were allowed to be married, and their marriages would continue to be recognized by the state, refusing to allow other gays to marry would violate the Fourteenth Amendment’s Equal Protection clause. That’s the ruling that would remain in effect if the Supreme Court rules that the Prop. 8 petitioners have no legal standing to be a party to the case.  

That now seems more likely to me than the other option that would allow them to avoid deciding on whether same-sex marriage is a constitutional right.  That other option would be to rule that “the petitioners”–the group that earlier asked the Ninth Circuit, and then asked the Supreme Court, to “vacate” the lower-court rulings and uphold the constitutionality of Prop. 8–don’t have “standing” to be a party to the lawsuit, because they would have no injury from a court ruling striking down Prop. 8 that is sufficiently direct and significant to meet the Article III standing requirement.  

If they go the “no standing” route, that would leave intact not the Ninth Circuit ruling based on narrow grounds but instead the lower, trial-court judge’s ruling, which was based on much broader grounds.  The effect would be somewhat, but not entirely the same, whichever of these two options they choose.

As I understand it, if they choose the option that leaves the Ninth Circuit opinion in place, that would mean that localities in California would have the option to allow same-sex marriage but would  not be required to allow it, although all government entities throughout the state would have to recognize any same-sex marriage as legal. If they instead choose the option that vacates the Ninth Circuit opinion and restores the lower, trial-court ruling, by ruling that the petitioners have, and had, no legal standing to appeal from the trial-court ruling either in the Ninth Circuit Court of Appeals or in the Supreme Court, that would mean that, for now, in central California, within the trial-court level federal court district where the case was filed and where the trial-court ruling was issued, Prop. 8 would be invalid and all localities within that court district would be required to allow same-sex marriage.


*Originally, I used the word “action,” but changed it to “suspense” because, if the Court strikes down DOMA as unconstitutional, that would be big, important action. I really meant “suspense,” because I do think the striking of DOMA is highly likely; not much suspense on that. But tomorrow’s argument will give some hint about whether I’m right.

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