This article is from the source 'guardian' and was first published or seen on . It last changed over 40 days ago and won't be checked again for changes.
You can find the current article at its original source at http://www.guardian.co.uk/world/2013/jun/28/us-supreme-court-doma-fate-america
The article has changed 3 times. There is an RSS feed of changes available.
| Version 1 | Version 2 |
|---|---|
| Did the supreme court's liberals balk at a more pro-gay Prop 8 ruling? | Did the supreme court's liberals balk at a more pro-gay Prop 8 ruling? |
| (3 months later) | |
| No one was certain how the supreme court would rule in this week’s two same-sex marriage cases, but one prediction seemed safe: the results in both cases would come down to Anthony Kennedy, the unpredictable libertarian at the center of the bench. | No one was certain how the supreme court would rule in this week’s two same-sex marriage cases, but one prediction seemed safe: the results in both cases would come down to Anthony Kennedy, the unpredictable libertarian at the center of the bench. |
| Eight of the court’s nine judges play their ideological hands in the open. To win, lawyers and scholars agreed, you had to convince the Reagan-appointed man in the middle. Kennedy’s power was so undisputed that the appellate court in one of the cases essentially lip-synched an earlier Kennedy opinion to seduce him. | Eight of the court’s nine judges play their ideological hands in the open. To win, lawyers and scholars agreed, you had to convince the Reagan-appointed man in the middle. Kennedy’s power was so undisputed that the appellate court in one of the cases essentially lip-synched an earlier Kennedy opinion to seduce him. |
| This Wednesday, one of the two marriage cases panned out as predicted. In US v Windsor, Kennedy sided with the four members of the court’s liberal bloc and wrote an opinion that struck down the central part of the Defense of Marriage Act (Doma). But the other case – Hollingsworth v Perry, which contested the California ballot initiative Proposition 8 – ended with something no one foresaw: Anthony Kennedy in dissent. | This Wednesday, one of the two marriage cases panned out as predicted. In US v Windsor, Kennedy sided with the four members of the court’s liberal bloc and wrote an opinion that struck down the central part of the Defense of Marriage Act (Doma). But the other case – Hollingsworth v Perry, which contested the California ballot initiative Proposition 8 – ended with something no one foresaw: Anthony Kennedy in dissent. |
| The court split 5-4 in Perry, but along an utterly bizarre, seemingly non-ideological divide. John Roberts, the chief justice, wrote the opinion that killed Prop 8 by ruling that the homophobic interest group that had brought the appeal had no standing in court. He was joined by the fire-breathing conservative Antonin Scalia and three liberal justices: Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Kennedy dissented, joined not only by the conservatives Clarence Thomas and Sam Alito but by Sonia Sotomayor, who’s probably the most left-wing of the nine. | The court split 5-4 in Perry, but along an utterly bizarre, seemingly non-ideological divide. John Roberts, the chief justice, wrote the opinion that killed Prop 8 by ruling that the homophobic interest group that had brought the appeal had no standing in court. He was joined by the fire-breathing conservative Antonin Scalia and three liberal justices: Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Kennedy dissented, joined not only by the conservatives Clarence Thomas and Sam Alito but by Sonia Sotomayor, who’s probably the most left-wing of the nine. |
| What happened? And what does the split say about America? | What happened? And what does the split say about America? |
| Let’s first recall how we got here. In Perry, two gay couples sued for the right to marry in California, which permitted same-sex marriage for a few months in 2008 but took that right away through a ballot initiative, called Proposition 8. The couples won their case in district court. But the governor of California – first Arnold Schwarzenegger, then Jerry Brown – declined to appeal. Instead a group called ProtectMarriage.com, which got Prop 8 on the ballot originally, stepped in. That group, not the California government, opposed Perry at the appeals court and again at the supreme court. | Let’s first recall how we got here. In Perry, two gay couples sued for the right to marry in California, which permitted same-sex marriage for a few months in 2008 but took that right away through a ballot initiative, called Proposition 8. The couples won their case in district court. But the governor of California – first Arnold Schwarzenegger, then Jerry Brown – declined to appeal. Instead a group called ProtectMarriage.com, which got Prop 8 on the ballot originally, stepped in. That group, not the California government, opposed Perry at the appeals court and again at the supreme court. |
| The couples’ lawyers, Ted Olson and David Boies, insisted that their clients and all gay Americans deserve the equal protection of the laws that the constitution guarantees. But we never found out whether the justices agreed. Instead, the court said that the homophobes bringing the appeal did not have “standing” to do so – that is, they could not demonstrate that the outcome of the earlier case had injured them. You can’t just sue because you feel like it. For the court to have authority to step in, Roberts wrote, “the party before it must seek a remedy for a personal and tangible harm.” | The couples’ lawyers, Ted Olson and David Boies, insisted that their clients and all gay Americans deserve the equal protection of the laws that the constitution guarantees. But we never found out whether the justices agreed. Instead, the court said that the homophobes bringing the appeal did not have “standing” to do so – that is, they could not demonstrate that the outcome of the earlier case had injured them. You can’t just sue because you feel like it. For the court to have authority to step in, Roberts wrote, “the party before it must seek a remedy for a personal and tangible harm.” |
| Kennedy argued the opposite: that the homophobes did have standing because someone had to speak for the people of California, his home state, which after all had passed Prop 8 at the ballot box. His dissent in Perry is a vintage Kennedy ode to states’ rights, and in particular to California’s ornery tradition of ballot initiatives. “The essence of democracy,” Kennedy writes, “is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.” | Kennedy argued the opposite: that the homophobes did have standing because someone had to speak for the people of California, his home state, which after all had passed Prop 8 at the ballot box. His dissent in Perry is a vintage Kennedy ode to states’ rights, and in particular to California’s ornery tradition of ballot initiatives. “The essence of democracy,” Kennedy writes, “is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.” |
| The whole thing, opinion and dissent, is a 35-page thicket of technical jargon, which is one reason why the much clearer Doma case got more attention on Wednesday. But note what’s lacking here. Perry – which was always seen as the more ambitious of the two cases, the one that would finally force the court to say whether gays deserve full equality – ended without any discussion at all about gay rights and gay people. | The whole thing, opinion and dissent, is a 35-page thicket of technical jargon, which is one reason why the much clearer Doma case got more attention on Wednesday. But note what’s lacking here. Perry – which was always seen as the more ambitious of the two cases, the one that would finally force the court to say whether gays deserve full equality – ended without any discussion at all about gay rights and gay people. |
| Both the district court and the appeals court decisions spent page after page demonstrating that gays are a disadvantaged minority deserving of equal protection, though they differed on how to apply that. The high court ducked it all. The outcome, the end of Prop 8, the restoration of marriage equality in California, may have been pleasant. But the procedure was ugly, and Kennedy – who is 76 years old and evidently concerned about his legacy – can’t even take credit for it. | Both the district court and the appeals court decisions spent page after page demonstrating that gays are a disadvantaged minority deserving of equal protection, though they differed on how to apply that. The high court ducked it all. The outcome, the end of Prop 8, the restoration of marriage equality in California, may have been pleasant. But the procedure was ugly, and Kennedy – who is 76 years old and evidently concerned about his legacy – can’t even take credit for it. |
| How can we explain this swerve, and the strange coalition of justices who endorsed it? There are two possibilities. The first is that Kennedy was uncomfortable with any possible ruling at all. Listen to him here, at oral arguments (PDF), address Olson: | How can we explain this swerve, and the strange coalition of justices who endorsed it? There are two possibilities. The first is that Kennedy was uncomfortable with any possible ruling at all. Listen to him here, at oral arguments (PDF), address Olson: |
| The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was. (Laughter.) | The problem with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that metaphor, there's a wonderful destination, it is a cliff. Whatever that was. (Laughter.) |
| But you're doing so in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70% of the way, and you're doing so in a case where there's a substantial question on standing. I just wonder if the case was properly granted. | But you're doing so in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70% of the way, and you're doing so in a case where there's a substantial question on standing. I just wonder if the case was properly granted. |
| Kennedy, in this reading, wanted to throw the whole case out without a decision – in supreme court jargon, to dismiss the case as “improvidently granted.” Given the passions around same-sex marriage, this would have been a public relations disaster. So John Roberts saves the day by ruling that the homophobes did not have standing, allowing Kennedy to stay safe in dissent. From there, three liberal justices join the opinion simply because it kills Prop 8. Two conservatives do the opposite. And Scalia and Sotomayor, once the outcome was clear, take principled stands on the question of judicial standing rather than concern themselves with gay rights. (Scalia just loves rejecting petitioners’ standing.) | Kennedy, in this reading, wanted to throw the whole case out without a decision – in supreme court jargon, to dismiss the case as “improvidently granted.” Given the passions around same-sex marriage, this would have been a public relations disaster. So John Roberts saves the day by ruling that the homophobes did not have standing, allowing Kennedy to stay safe in dissent. From there, three liberal justices join the opinion simply because it kills Prop 8. Two conservatives do the opposite. And Scalia and Sotomayor, once the outcome was clear, take principled stands on the question of judicial standing rather than concern themselves with gay rights. (Scalia just loves rejecting petitioners’ standing.) |
| But the other possibility – and it’s worth thinking about even if we’ll never know for certain – is that Anthony Kennedy was truly ready to make the call. In which direction? Perhaps he would have upheld Prop 8, and the liberals sided with Roberts to prevent that. But I sincerely doubt that, given not only his decades-long embrace of gay rights, but the decision Kennedy ended up writing in the other marriage case this week. One of his former clerks cheekily called him “the first gay justice,” and in Windsor Kennedy showed why. | But the other possibility – and it’s worth thinking about even if we’ll never know for certain – is that Anthony Kennedy was truly ready to make the call. In which direction? Perhaps he would have upheld Prop 8, and the liberals sided with Roberts to prevent that. But I sincerely doubt that, given not only his decades-long embrace of gay rights, but the decision Kennedy ended up writing in the other marriage case this week. One of his former clerks cheekily called him “the first gay justice,” and in Windsor Kennedy showed why. |
| Not only did Kennedy write the opinion that struck down Doma, but he did so in much more generous language than expected. At oral arguments for Windsor he sounded as if he would be pushing a federalist line. Instead, he wrote an opinion that, while a bit hazy in its logic, must be the most rapturous paean to gay equality ever espoused by the court: | Not only did Kennedy write the opinion that struck down Doma, but he did so in much more generous language than expected. At oral arguments for Windsor he sounded as if he would be pushing a federalist line. Instead, he wrote an opinion that, while a bit hazy in its logic, must be the most rapturous paean to gay equality ever espoused by the court: |
| DOMA in structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar riage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. | DOMA in structs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the mar riages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its mar riage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. |
| You can’t trust the oral arguments to predict the outcome; that’s clear from Windsor and indeed from last year’s healthcare case, which surprised almost everyone. So what if Kennedy, who ended up writing a much more pro-gay decision on Doma than was required, really was ready to say that there is a constitutional right to same-sex marriage? What if he was ready to apply that in California or (much less likely) the whole country? That would make it much easier to understand the bizarre 5-4 split in Perry. But it also leaves us to consider the very real possibility that it was the court’s liberal justices who put the brakes on Kennedy, fearing public backlash if they ruled on the merits of gay equality rather than on a technicality. | You can’t trust the oral arguments to predict the outcome; that’s clear from Windsor and indeed from last year’s healthcare case, which surprised almost everyone. So what if Kennedy, who ended up writing a much more pro-gay decision on Doma than was required, really was ready to say that there is a constitutional right to same-sex marriage? What if he was ready to apply that in California or (much less likely) the whole country? That would make it much easier to understand the bizarre 5-4 split in Perry. But it also leaves us to consider the very real possibility that it was the court’s liberal justices who put the brakes on Kennedy, fearing public backlash if they ruled on the merits of gay equality rather than on a technicality. |
| Uncomfortable though this sounds, it chimes with something that Ginsburg, the court’s senior liberal, said last month. Speaking at the University of Chicago about Roe v Wade, she said the court’s 1973 ruling on abortion had “moved too far, too fast”: | Uncomfortable though this sounds, it chimes with something that Ginsburg, the court’s senior liberal, said last month. Speaking at the University of Chicago about Roe v Wade, she said the court’s 1973 ruling on abortion had “moved too far, too fast”: |
| That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly … My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change. | That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly … My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change. |
| Ginsburg went on to argue for “judicial restraint” when it came to social issues, adding: | Ginsburg went on to argue for “judicial restraint” when it came to social issues, adding: |
| The court can put its stamp of approval on the side of change and let that change develop in the political process. | The court can put its stamp of approval on the side of change and let that change develop in the political process. |
| Whatever the virtues of her assessment of the abortion debate, Ginsburg was surely signaling something here: that she was not ready to sign an opinion that, in her view, could short-circuit the progress of the gay rights movement. She may not realize that same-sex marriage isn’t at all like abortion, in that its support cuts across ideological divides for everyone other than old people. A full 81% of Americans aged 18 to 29 support gay marriage. While abortion remains a live question, marriage equality is settling, and settling fast. | Whatever the virtues of her assessment of the abortion debate, Ginsburg was surely signaling something here: that she was not ready to sign an opinion that, in her view, could short-circuit the progress of the gay rights movement. She may not realize that same-sex marriage isn’t at all like abortion, in that its support cuts across ideological divides for everyone other than old people. A full 81% of Americans aged 18 to 29 support gay marriage. While abortion remains a live question, marriage equality is settling, and settling fast. |
| All of this may be nothing more than constitutional tea-leaf reading. But it’s worth taking seriously the proposition that one, two or three of the court’s four liberal justices may have slowed the pace of marriage equality in America – if only to ensure that gays and their allies fight harder next time. For in striking down Doma with such expansive language, and then refusing to do the same with Prop 8, the court has essentially said to gay people in 37 states that they should just bide their time until everyone else is ready. That cowardly position is precisely the one African-Americans and other minorities fought against last century, and which today we rightly hold in contempt. | All of this may be nothing more than constitutional tea-leaf reading. But it’s worth taking seriously the proposition that one, two or three of the court’s four liberal justices may have slowed the pace of marriage equality in America – if only to ensure that gays and their allies fight harder next time. For in striking down Doma with such expansive language, and then refusing to do the same with Prop 8, the court has essentially said to gay people in 37 states that they should just bide their time until everyone else is ready. That cowardly position is precisely the one African-Americans and other minorities fought against last century, and which today we rightly hold in contempt. |
| Our editors' picks for the day's top news and commentary delivered to your inbox each morning. | Our editors' picks for the day's top news and commentary delivered to your inbox each morning. |