In late April, with the exam nigh and the Springtime weather
just starting to lure all our minds far away from printed papers and screens
full of text, I gave my AP English Language students a huge, risky assignment.
I let them choose one Supreme Court case – U.S. vs Windsor or Hollingsworth vs Perry – and one justice. They would read the oral argument
transcript of their case, focusing on their selected justice. The endgame: they
needed to predict how their justice would vote in their case.
This would be a real test of their mettle – had I prepared
them enough to tackle such a lengthy document? Were their analytical scalpels
sharp enough to parse questions and answers and actually read the mind of
the Supreme Court? Did they trust me enough
to invest in this as a real-world, real-time method for practicing the skills
that will be intensely measured on their AP exam ten days hence? Did they care
enough to put the effort forward? Did they understand that the context was a
tad bigger than simple test prep?
Those two days of discussion affirmed my instincts and
buried my doubts. They cared, they read, they studied, they prepared, and in
both small groups and class conversation, my AP Langstas displayed an
incredible level of skill. My students, across all three periods, argued
passionately for their hypotheses while dispassionately dissecting the words of the justices as they were.
The vast majority of the students did not know the reputations of our high
court, but they quickly saw the patterns. The Kennedy group shrugged – guy
could go either way. The Thomas group pulled its hair out, then did some additional research (of their own accord), and realized that,
no, he usually doesn’t say anything during the proceedings but his public
remarks on the subject could steer them towards a few theories. The
conservatives and liberals were clearly earmarked, and after the arguments were
shared and compared, the consensus guess my 88 AP Language students made on
April 30th was:
Two 5-4 decisions, likely leaning in favor of marriage
equality in both cases. The curveball: the issue of whether Prop 8’s
proponents, as private citizens, were even authorized to defend the law in
court.
Lo and behold, today those verdicts were rendered, and sure
enough, while the majority in Windsor
unequivocally struck down DOMA’s mixed-gender definition of marriage as
unconstitutional, the Hollingsworth
majority (an utterly unpredictable team of Roberts, Scalia, Ginsburg, Breyer,
and Kagan) threw out that case because Prop 8’s citizen defenders lacked
standing. Both were 5-4 decisions. My students won’t get their official AP exam
scores for another couple of weeks, but if there was a section that assessed
prescience, they can expect very high marks, indeed. I applaud them all for
their incredible analysis two months before the fact.
In flipping through both decisions, I’ve got a few
predictions of my own for how the issue of gay rights and marriage equality may
proceed in the years to come. Oddly enough, I find a great deal of progressive
optimism in the words of our Chief Justice and, of all people, Justice Antonin
Scalia.
DOES NO HARM
On the standing issue, both men have something to say.
Scalia wrote a dissent in Windsor, the
case targeting the Defense of Marriage Act. He questions the issue of standing
here because the Justice Department has decided not to defend the law, and the
lower Federal court granted the plaintiff remedy and ruled that DOMA was
unconstitutional. Thus, the citizen harmed has already won a verdict, and the
Government isn’t really fighting all that hard on appeal. This prompts Scalia to write: “What,
then, are we doing here?” He
believes the Supreme Court’s “authority begins and ends with the need to
adjudge the rights of an injured party who stands before us seeking redress.”
For Hollingsworth,
the shoe is on the other foot. California state officials have refused to
defend Proposition 8 for years, but this time, the private citizens are seeking
to defend the law, rather than seeking redress from it. Since the law was
approved through the grassroots initiative process, these citizens claim to
have the right to defend the law that they worked to put on the state ballot
and then pass. Chief Justice Roberts (who concurred with Scalia’s Windsor dissent only on the similar point above) writes that
those citizens lack the authority to step in and defend the propriety of a
state law in place of government officials. The key parallel, though, is the
issue of harm:
“Article III of the Constitution confines the judicial power
of federal courts to deciding actual ‘Cases’ or ‘Controversies.’ §2. One
essential aspect of this requirement is that …the litigant must seek a remedy
for a personal and tangible harm…. Once Proposition 8 was approved, it became a
duly enacted constitutional amendment. Petitioners [the private citizens who
support the law and brought this case to the Supreme Court] have no
role—special or otherwise—in its enforcement. They therefore have no ‘personal
stake’ in defending its enforcement that is distinguishable from the general
interest of every California citizen.”
Notice the pattern? Ordinary citizens who simply agree with
the law cannot defend it in court. For that privilege, you must be demonstrably
harmed by the law (or, in the government’s
case, harmed by a prior court’s verdict against your law). This tacitly
dismantles the long-standing argument that allowing same-sex marriage threatens
mixed-gender marriages. Roberts has discredited that claim; if the legal status
of same-sex marriage had actually harmed the petitioners, they could argue
their case. The case is dismissed because there is no harm done by same-sex unions.
STILL UNDECIDED
Both Roberts and Scalia took the time to highlight what the Windsor
decision does not address: the constitutionality of a legal ban on
same-sex marriage. The majority essentially decided that any marriage which is
state-sanctioned must be equally recognized by federal law. DOMA was thrown out
because, in the words of Justice Kennedy, its “principal effect is to identify
a subset of state sanctioned marriages and make them unequal.” The Chief
Justice spends about two-thirds of his dissent emphasizing that this verdict
leaves a key question unanswered:
“But while I disagree with the result to which the
majority’s analysis leads it in this case, I think it more important to point
out that its analysis leads no further. The Court does not have before it, and
the logic of its opinion does not decide, the distinct question whether the
States, in the exercise of their ‘historic and essential authority to define
the marital relation,’ ante, at 18, may continue to utilize the traditional
definition of marriage.”
Roberts sees no mandate for states to uniformly recognize
same-sex marriage in the majority opinion. Scalia, on the other hand, engaging
in his own brand of rhetorical analysis, most certainly does. It’s not
explicit, but it’s certainly there, he argues:
“The penultimate sentence of the majority’s opinion is a
naked declaration that ‘[t]his opinion and its holding are confined’ to those
couples ‘joined in same-sex marriages
made lawful by the State.’… In my opinion, however, the view
that this Court will take of state prohibition of same-sex marriage is
indicated beyond mistaking by today’s opinion. As I have said, the real
rationale of today’s opinion, whatever disappearing trail of its legalistic
argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . .
desire to harm’” couples in same-sex marriages. Supra, at 18. How easy it is,
indeed how inevitable, to reach the same conclusion with regard to state laws
denying same-sex couples marital status. Consider how easy (inevitable) it is
to make the following substitutions in a passage from today’s opinion ante, at
22:
(At this point, Scalia proceeds to quote the Court’s
majority opinion, striking references to DOMA and substituting the terms “state
law” and similar phrases to make his point. He does this with three entire
paragraphs from the opinion. Here’s the first sample – a line I’ve already
quoted in this blog.)
“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned
marriages constitutionally protected sexual relationships, see Lawrence [vs. Texas], and make them unequal.”
Roberts felt compelled to point out that the opinion does
not address the propriety of prohibiting same-sex couples from marrying. Scalia
argues that the opinion quite clearly lays the foundation for such bans to be
thrown out. I side with Scalia here; the opinion Kennedy wrote certainly contains the rhetoric of damnation
regarding the unequal treatment of same-sex couples. Nonetheless, I also think
both Roberts and Scalia have, in their discussion of the “harm” issue and even
their mention of the larger questions
that went unanswered, planted some logical kernels into the official record
that cast a strong shadow over the movement to ban same-sex marriage.
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