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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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Looks like DOMA will be stricken … if the Court decides the issue at all in this case. [Expanded.and updated.]

Final update: #scotus 80% likely to strike down #doma. J Kennedy suggests it violates states’ rights; 4 other Justices see as gay rights.

–Tom Goldstein of SCOTUSblog, on Twitter

And:

“The question is whether or not the federal government under a federalism system has the authority to regulate marriage,” Justice Kennedy said during oral arguments. At another point, he disagreed with the lawyer’s contention that the law simply creates a single definition for federal purposes. “It’s not really uniformity,” the justice said, because same-sex couples would not have access to federal benefits that traditional couples have.

Justice Kennedy’s point echoed one made by his more liberal colleagues.

Justice Ruth Bader Ginsburg said the federal law effectively created a two-tiered system of marriage. “There are two kinds of marriage,” she said. “Full marriage and the skim-milk marriage.”

5 Justices Seem Skeptical of Ban on Benefits to Gay Spouses, Adam Liptak and Peter Baker, New York Times

From what Liptak and Baker write, it sounds like Kennedy may vote to strike down DOMA as unconstitutional on equal protection grounds as well as on states-rights grounds, not just on the latter ground.  So it would be a 5-4 decision on that issue, not a 4-4-1 decision in which Kennedy takes no position on the equal protection issue.

That will be important down the road, once the Court does decide to decide the issue of marriage as a constitutional right for same-sex couples, which it looks like they won’t do in the California Prop. 8 case argued yesterday.  

But, for “jurisdictional” reasons, the Court might decide not to decide the constitutional issue in this case.  The Washington Post’s report on today’s argument discusses the procedural issue and what transpired on it during the argument this morning.  A majority could vote to dismiss the case and leave the lower appellate opinion, holding DOMA unconstitutional, intact, if the Obama administration did defend the law in that court; I don’t know whether it did or not.*  I doubt that that is what will happen, though.  I think a majority will say that there is a sufficient “case or controversy” between the plaintiff and the federal government, which enforced DOMA against her even though the administration is not defending the law in court, to permit the federal courts to decide this case. So, despite the House group’s lack of “standing” to be a party in the case, the Court would have jurisdiction to decide the case, as did the lower appellate court.

I explained the “standing” thing here yesterday, in the context the Prop. 8 case.

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UPDATE: Here’s SCOTUSblog’s Lyle Denniston really thorough article reporting on and explaining it all.  Most interesting to me is this:

Justice Kennedy told [attorney Paul] Clement that there was “a real risk” that DOMA would interfere with the traditional authority of states to regulate marriage.   Kennedy also seemed troubled about the sweeping breadth of DOMA’s Section 3, noting that its ban on benefits to already married same-sex couples under 1,100 laws and programs would mean that the federal government was “intertwined with citizens’ daily lives.”   He questioned Congress’s very authority to pass such a broad law.
Wow.  This is not just an equal-protection statement.  This is even more basic.  It is a substantive-due-process-rights statement.  As in: There are constitutional limits to which the government–state or federal–is permitted to interfere in personal and private decisions. That was the ground on which Kennedy and the justices who joined his opinion a decade or so ago held Texas’s criminal anti-sodomy law unconstitutional. 

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*The Obama administration never defended DOMA in the Windsor case, the case argued today. The plaintiff, Edie Windsor, won in the trial-level court, and then in the Second Circuit Court of Appeals.  So if the Supreme Court dismisses the appeal, which was filed by a group of House Republicans, on the ground that that group lacks standing to be a party to the case at any level, that would reinstate the trial-court ruling in Windsor’s favor, but that ruling would have no precedential effect in other cases even within the Second Circuit. But, as I said above, and as Lyle Denniston says, it’s likely that the Court will say that there is an active case and controversy between Windsor and the federal government because the government did enforce DOMA against her until she filed the lawsuit and won in the lower courts.

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