Donal Verrilli

Part 2: The presidential punch

 How strong a position did the Obama administration take in its briefs on the Supreme Court marriage cases—and can it make a difference?

The following is the second in a four-part series to prepare readers for what to expect March 26 and 27 when the U.S. Supreme Court takes up the marriage equality cases. (Part 1.)

LGBT legal activists and their allies have nothing but praise for the Obama administration’s decision to submit briefs in both marriage equality cases before the U.S. Supreme Court this month. The administration was obliged to file only in U.S. v. Windsor, the case testing the constitutionality of the federal Defense of Marriage Act (DOMA). That’s because the U.S. is a party to that case, defending the administration’s obligation to enforce DOMA.

But the administration’s brief in the DOMA case made clear it wants DOMA ruled unconstitutional and –in a brief it did not have to submit– it also made clear it thinks Proposition 8 should be declared unconstitutional.

The Proposition 8 brief came in Hollingsworth v. Perry, the case testing the constitutionality of California’s 2008 voter-approved ban on marriage licenses for same-sex couples. The U.S. is not a party to the lawsuit that challenged that law. The fact the administration chose to submit a brief anyway is being hailed by many as an important political gesture, backing up President Obama’s commitment to equality for LGBT people with the power of his position.

But did the briefs go as far as they could to support marriage equality? And, could the briefs have any real likelihood of influencing any justice on the court?

What the briefs said

As is custom, Solicitor General Donald Verrilli filed the administration’s briefs in both cases, and he did so with several of his staff, including Stuart Delery, the openly gay head the DOJ’s Civil Division.

In the DOMA case, the DOJ argued that Section 3 of DOMA violates the equal protection clause of the constitution. Section 3 prohibits the federal government from recognizing marriage licenses of same-sex couples for the purpose of any federal benefit.

DOJ also argued, as the Second Circuit appeals court ruled in its decision in Windsor, that courts should subject laws which disadvantage citizens because of their sexual orientation to a “heightened scrutiny,” a much more stringent level of review than has ever been applied to such laws before. And it argued that DOMA fails to pass muster under heightened scrutiny, a point first raised by U.S. Attorney General Eric Holder’s famous letter advising House Speaker John Boehner that the administration would enforce but no longer defend DOMA as constitutional.

The brief in the Proposition 8 case takes essentially the same positions –Proposition 8 violates equal protection, it should be subjected to heightened scrutiny, and it fails to pass heightened scrutiny. And much has been made of the fact that the brief also noted that seven other states have laws similar to that of California, making civil unions or domestic partnerships possible for gay couples, but not marriage. (Those states are Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.)

What the briefs didn’t say

DOJ did not argue for strict scrutiny — the toughest level of judicial review. And it did not argue that DOMA is unconstitutional if judged under the most basic level of scrutiny, rational basis.

The level of scrutiny matters.

Generally speaking, there are three levels: rational, heightened, and strict. Until the Second Circuit decision in Windsor, most courts, including the Supreme Court, have examined laws that disfavor LGBT people against the easy rational basis standard. To pass rational basis, a law must simply be rationally related to achieving a legitimate governmental interest. The intermediate level of scrutiny –heightened scrutiny— requires that a law must be “substantially related” to achieving an “important” governmental interest. And strict scrutiny requires that a law be “narrowly tailored” to achieve a “compelling” governmental interest.

Laws affecting people based on race and national origin are examined under strict scrutiny and have very rarely passed this test. (A notable exception being an executive order requiring internment of Japanese American citizens during World War II, with the compelling reason being identified as national security.)

As the Solicitor General’s briefs noted, the Supreme Court has yet to identify what level of scrutiny should apply to laws that disfavor citizens based on sexual orientation. In recent cases (overturning an anti-gay ballot initiative in Romer v. Evans and striking down sodomy laws in Lawrence v. Texas), he noted, the court applied rational basis and said the laws did not pass.

The Solicitor General’s brief in the DOMA case states explicitly, “The government does not challenge the constitutionality of DOMA Section 3 under deferential rational-basis review….” And it noted that the government has previously defended Section 3 under rational basis review.

“The Justice Department argues in its brief that DOMA is unconstitutional if heightened scrutiny is applied, but valid if rational basis review is used,” explained long-time gay legal activist and scholar Nan Hunter in a March 4 blogpost at TheNation.com, “unless the Court uses heightened rational basis, in which case DOMA is unconstitutional after all.”

So, the Solicitor General’s DOMA brief doesn’t concede on rational basis. It just tries to focus the court’s attention on the worthiness of applying a more stringent form of review. And it gives credit for the idea to a former U.S. Supreme Court Justice, Reagan appointee Sandra Day O’Connor. In Lawrence, concurring Justice O’Connor suggested the court consider a “more searching form” of rational basis review when a law is “directed toward gay persons as a class.” The Solicitor General’s Windsor brief said DOMA, “would fail” such an analysis. And his Hollingsworth brief sticks with the mantra that Proposition 8 fails heightened scrutiny.

The bottom line:

“The most important outcome of the DOMA case for the future of gay rights law,” says Hunter, “is that the Court is likely to declare itself on which standard should be applied to any law that discriminates based on sexual orientation.” The administration is arguing for a middle ground that could have huge consequences for LGBT people, making any laws aimed at disadvantaging them much harder to survive.

Expert and activist reaction

Ted Boutrous, one of the lead attorneys for the same-sex couples challenging Proposition 8, told reporters in a telephone conference call February 28 that he was “extremely pleased” with the Obama administration’s brief in that case. He said the brief is “powerful” and places the “full weight” of the government behind their arguments against the ban. The administration’s urging heightened scrutiny for laws treating people differently based on sexual orientation, he said, is a “clear path toward marriage equality across the United States,” even beyond the seven states similarly situated as California.

Heightened scrutiny, said Boutrous, “is extremely important in other contexts where gay and lesbian Americans are discriminated against.”

“And the United States government has said in its brief to the U.S. Supreme Court that this discrimination cannot be tolerated,” said Boutrous. “It’s extremely important.”

Boutrous acknowledged that the Solicitor General’s brief did not, as the Proposition 8 challengers’ brief does, argue that there is a “fundamental right” to marriage. Laws that infringe upon a fundamental right must also be reviewed using strict scrutiny. But he reiterated that he could say only positive things about the administration’s brief and added, “it can only make our case that much stronger.”

Mary Bonauto, civil rights director for Gay & Lesbian Advocates & Defenders (GLAD), said LGBT legal activists have “all sought strict scrutiny, starting with Gill.” GLAD’s Gill v. Office of Personnel Management, coupled with the Massachusetts v. Health and Human Services case by the Commonwealth, were the first to take on DOMA; and the first to succeed all the way through the federal appeals court. GLAD also had Pedersen v. OPM in the Second Circuit and Lambda Legal had Golinski v. OPM in the Ninth Circuit.

“Golinski and Pedersen made headway on this,” noted Bonauto, “and the Second Circuit in Windsor became the first appellate court to find heightened scrutiny for sexual orientation classifications.”

But Bonauto and others pushing for the end to DOMA and Proposition 8 are not critical of the administration for seeking heightened scrutiny, rather than strict scrutiny.

“They could obviously have been more ambitious and far-reaching, but that doesn’t mean they hedged,” said Laurence Tribe, the widely respected Harvard constitutional law expert. Tribe argued against sodomy laws in the 1986 Bowers v. Hardwick case and filed what many consider the most influential brief against sodomy laws in the Lawrence case. He called the Obama administration’s briefs “excellent” and said they “took reality into account, as I think they should have.”

At least one former Supreme Court insider suggested it’s actually a good thing the administration took a middle road. Rather than facing the options in Proposition 8, for instance, of “marriage for all” or “marriage for just California,” said the source, the administration brief in Proposition 8 offers the court a third option –marriage for eight states.

And Bonauto is quick to point out that the Solicitor General’s brief on Proposition 8 represented the first time DOJ officials have submitted a legal brief seeking “the right to marry.” In other cases, she noted, the DOJ has sought the right for equal treatment of same-sex couples who were already married. And its discussion in the Proposition 8 brief, said Bonauto,  “clearly” addresses the California ban “in ways that could affect the legal debate beyond California.”

Beyond the briefs

As much as legal experts like to focus on the language of the law and on finely tuned arguments on scrutiny, legal standing, and the constitution itself, the justices do not hear cases such as Hollingsworth and Windsor in a vacuum. Justices read, they speak in public and engage in Q & As, they submit to interviews, and they are aware of public opinion. They are obviously aware of the extraordinary mound of friend-of-the-court briefs piled up on either side in both cases. They almost certainly read former President Bill Clinton’s op-ed in the Washington Post March 7, explaining his regret for having signed DOMA into law in 1996.

“I know now that, even worse than providing an excuse for discrimination, the law is itself discriminatory. It should be overturned,” wrote Clinton.

It would also be hard to imagine that any of the justices missed the splash of news four months ago when three states adopted marriage equality and one rejected a ban on it. There was considerable publicity last May, too, when President Obama said he supports the right of gay couples to marry. So, to some extent, the Solicitor General’s briefs just make the president’s already known support for marriage equality formal and particular to the two legal battles here.

But these two cases also come to the Supreme Court at an especially volatile juncture. The justices must issue a decision soon in a case challenging the constitutionality of college admission policies tailored to achieve a racially diverse student population. They have been asked to review a case concerning state regulation of medications to induce abortion. And many believe a conservative majority might be on the verge of issuing a decision that could trigger a civil rights backlash — by striking down a section the Voting Rights Act, a 48-year-old law to prohibit discriminatory practices against racial minorities at the voting booth. The section in question, akin to the Proposition 8 case, considers whether states have a right to determine their own laws.

“The Roberts court stands on the brink of making an error of historic proportions” in that regard, predicted New York Times veteran Supreme Court reporter Linda Greenhouse.

If she’s right, it will be a big conservative push, with a key swing voter –Justice Anthony Kennedy (who led the majority in Romer and Lawrence)– pushing once again with the conservatives. In 2010, Kennedy led them with the controversial Citizens United v. Federal Elections Commission decision, allowing unrestricted independent campaign expenditures by corporations and unions. And last year, Kennedy led the dissent against the Affordable Care Act case.

On the other hand, Justice Kennedy joined an 8 to 1 majority in 2010 that said a Washington State law requiring the names and addresses of petition signers be made public does not violate the First Amendment. And he joined a 5 to 4 majority that same year in Christian Legal v. Martinez, ruling that religious beliefs may not always trump policies seeking to ban discrimination.

Roberts surprised many court observers last June when he led the brief to uphold the Obama administration’s Affordable Care Act in HHS v. Florida. And in March 2010, Roberts denied an emergency motion to stay enactment of Washington, D.C.’s new marriage equality law (though he did hint the group bringing the case made an argument with “some force”).

While many, if not most, court observers believe Justices Antonin Scalia and Clarence Thomas are certain to vote to preserve DOMA and Proposition 8, there is at least one ray of hope Justice Samuel Alito is persuadeable. In March 2011, Alito was the lone vote against the Westboro Baptist Church position that the First Amendment gave it the right to publicly hurl anti-gay epithets outside a private funeral. Alito’s dissent said he does not believe the First Amendment gives anyone “a license for the vicious verbal assault” that makes “no contribution to public debate.”

It is also comforting to supporters of marriage equality that there were not four justices on the court in January 2011 when the group of clergy in Washington, D.C., tried a second attempt to challenge that city’s new marriage equality law.

But could the Obama administration’s briefs in these two marriage cases really sway any of the nine justices?

In her TheNation.com post, Hunter (who believes Alito is also likely to join Scalia and Thomas) suggests the justices have many more pressures to consider.

Justice Kennedy, she wrote, is “a strong believer in state sovereignty, and a decision forcing legal change in forty-one states may be too much for him to join….”

“The defenders of Proposition 8 will to try assuage the justices that, if the political process is left to work, more and more states will re-amend their constitutions and change their statutes to gradually adopt gay marriage laws on their own, without judicial ‘interference’,” wrote Hunter. “In addition, the liberal justices who support gay marriage may worry that a sweeping Roe v. Wade–like decision will trigger a massive backlash.”

These concerns, and the questions of legal standing, she wrote, “sure seem like a nice way to kick a vexatious can down the road.”

But former Solicitor General Ted Olson thinks the briefs could have “great effect.” Olson was solicitor general under President George W. Bush in 2003 when the Lawrence case in the Supreme Court challenged laws banning same-sex sexual relations. He did not file a brief in that case. Thurgood Marshall was solicitor general under President Lyndon Johnson during the Loving v. Virginia contest. He did not file a brief in that case, challenging laws that banned interracial marriage. Nor did Reagan Solicitor General Charles Fried file a brief in the 1986 Hardwick v. Bowers case, nor did Clinton Solicitor General Drew Days filed a brief in the Romer case.

So, if for no other reason, the Obama administration’s willingness to have the federal government to weigh in on the marriage cases is undeniably significant, even if it fails to persuade a single vote.

As GLAD’s Bonauto puts it, “That brief is the brief of the United States of America, and it’s hard to match that in influence.”