Burwell v Mata: Or the Fate of Obamacare and Same-sex Marriage

Let us speculate on the fate of two cases,   King v. Burwell (Affordable Care Act subsidies to health care exchanges run by the federal government) v Mata v Holder (same-sex marriage).

Given Justice Thomas’ dissent in the Alabama same-sex marriage stay some are speculating that Justice Roberts will vote to make it 6-3 in holding that the Constitution protects a right to same-sex marriage.  Assuming that is correct, there may be a several possible reasons for his vote.

Obviously one answer is that he thinks this is the correct constitutional answer.  Second, the Chief Justice is engaged in some smart politics and strategic decision making.  Should he vote to rule that same-sex marriage is protected under the Constitution he is in the position to write or assign the majority opinion.  He of course could assign the opinion to Kennedy (assuming which I do that he is the fifth vote) or he retains the right to pen the opinion himself, thereby giving him more leverage over what the Court opinion is or simply to ensure that the decision is at least 6-3, thereby strengthening its legitimacy.

Another scenario: He is leaning toward striking down the federal subsidies under the ACA.  This is not an impossible scenario and given rumors that he switched his vote in 2012 regarding the constitutionality of the mandate, it is possible that now he write a 5-4 opinion striking down the subsidies on statutory interpretation grounds.  Thus, voting to support same-sex marriage under the Constitution gives him some political capital or deflects away from his decision in Mata invalidating the federal subsidies.

From Selma to Stonewall: Same-Sex Marriage and the Legacy of Martin Luther King, Jr.

            By now it seems inevitable if not entirely predictable that by July this year same-sex marriage will be the law of the land in the United States.  Many will applaud that it is now legal across America and that the battle for equality is over.  Yet for all who draw the parallel between the battle for GLBT rights and civil rights, one can only hope that it does not end the same way, a war half won and facing serious backlash to this day in the South and across white America.

            On Friday the Supreme Court announced that it will review a Sixth Circuit Court of Appeals decision which had upheld a ban a same-sex marriage.  It accepted the case because other circuits had ruled contrary, creating a split in the law that the Supreme Court has to resolve.  This is the political science-law professor answer to why the case will be heard. The US is also a country divided, with 36 states and 70% of the population living in a world where same-sex marriage is legal, and where there is no definitive answer to whether the Constitution protects the right of same-sex couples to marry.  Federalism may be great for many things, but some constitutional questions demand definitive answers.

            While the Supreme Court has avoided it so far, the question before it will be whether the Constitution protects the right of same-sex couples to marry.  Justice Kennedy will write a 5-4 opinion saying that it does (unless Chief Justice Roberts joins in to make it 6-3 so he can control the scope of the majority opinion), capping a career where he has written all the major opinions (Romer, Lawrence, and Windsor) affirming GLBT rights.  Four years ago at a Supreme Court continuing legal education class I did at Reuters I predicted that Kennedy would write a June 5-4 opinion declaring that the Constitution protects same-sex marriage, and then he would announce his retirement.  I still think that will occur this year.  It is unlikely, contrary to what some social conservatives hope, that the Court will declare same-sex marriage contrary to the Constitution or that it will author any opinion invalidating same-sex marriages in any place in the United States.  Nor is it likely that the Court will simply say that the Constitution is silent on the issue and leave it to the states to decide.

            So then what?  Is the battle over?  For Republicans the decision would be great. As with immigration, letting someone else resolve a divisive issue upon which you are on the losing side of history and which costs you votes and future party vitality would be a blessing.  Making same-sex marriage legal across the country takes the issue off the electoral agenda.  But  that is not the end of the story. 

            The movie Selma is a powerful reminder of how far and not this country has come regarding civil rights for African-Americans.  The reason that movie is so powerful is not simply because of its reenacted and reminder of the violence that occurred at the Edmund Pettus Bridge and elsewhere in South and across the country during the 50s and 60s as King and others fought for equality.  It is also a powerful reminder, especially in light of Michael Brown and Eric Garner, that the struggle and the violence persists. A half a century after Selma racial discrimination persists.  It exists in school outcomes and incarcerations.  It exists in racial profiling,  income and wealth disparities, and in general attitudes about race, especially and still in the South.

            Many have drawn parallels between the civil rights movement for racial equality and the battle for GLBT rights.  Blacks had Selma, gays and lesbians Stonewall in New York.  Many draw parallels in the legal strategies between Thurgood Marshall, NAACP, and the Lamda and Human Rights campaigns.  Loving v. Virginia (where the Supreme Court struck down laws banning racially mixed marriages) is the direct precedent invalidating bans on same-sex marriage. There are similarities, but let us hope there are differences.  Fifty years later racism remains entrenched in America, especially in the South.  It is no coincidence that the core of the states today that oppose same-sex marriage are the same that fought Black civil rights the hardest, and where discrimination is still ugly.  These are also the states where reproductive rights are still  most fiercely opposed 40 years after Roe v. Wade, and where workers rights are weakest.

            The point is that passage of a law or the issuance of a Supreme Court decision does not end the battle.  Despite Selma, the 1964 Civil Rights Act, and the 1965 Voting Rights Act, much work needs to be done to bring racial equality to America.  The same will be true come later this year when Justice Kennedy writes his 5-4 opinion.  This is what we need to remember as we celebrate Martin Luther King’s birthday.

Same-Sex Marriage and the Supremes: What will the Court Do Now?

    So after two days of arguments before the Supreme Court, what are the prospects for legalization of same-sex marriage across the United States if not in Minnesota?  The best guess right now is that there are not five votes to strike down all bans on same-sex marriage across the country but that instead potential inaction by the Supreme Court may be one of the best things to happen for those who support the right of gays and lesbians to wed.

Constitutional Law 101
    The Supreme Court under Justice Roberts has a history of closing the doors of justice.  What do I mean by that?  Since Roberts and Alito joined the Court the mostly conservative majority has issued numerous rulings making it more difficult for individuals and entities to bring cases.  The Court has taken a narrow view of standing.  Standing refers to whether a person has a right to bring a case to court.  Not everyone is allowed to bring a case to court.  One must show an injury.  By that, the Constitution and the rules of civil procedure require that  persons show that they are injured in someway–legally or injured in fact–and that they are the appropriate person or persons to claim that injury.  During Roberts' tenure, his Court has made it difficult for taxpayers to challenge government use of money for religious purposes, and in general has also made it hard (as in Walmart sex discrimination  case) for class actions to move forward.
     In other cases, when it comes to medical devices or generic drugs, the Roberts Court has made it difficult to sue on grounds that federal law preempts state law.  Finally, the Court has also  made the basic threshold requirements for alleging a claim or injury more difficult, giving judges more discretion to thrown out cases.  Finally, the Court has made it difficult to challenge the facial validity of a law.  This was the case with the Indiana voter ID case.
    In short, the Roberts Court is closing the door to the federal courts.
    Finally, there are two other points about constitutional law that one needs to know.  First, for a case to be brought in court there must be case or  controversy.  By that, there must be a real dispute with opposing parties.  If there are no opposing parties then there is no dispute and therefore the courts must dismiss the case.  Second, as a general principle, courts should generally not involve  themselves in political questions or disputes, reserving their resolution for Congress, the president, or the states.

Closed Doors but Coming out of the Closet?
    Normally closing the doors of the courts means a denial of justice.  But with the two gay rights cases before the Supremes, this closed door policy may bring same-sex marriage out of the closest?  How so?  One needs to understand what law professors call the procedural posture of the two cases.
    First look at the California Prop 8 case.  The CA Supreme Court declares that a state law denying same-sex couples the right to marry is unconstitutional.  Prop 8 is then adopted by voters to overturn that ruling.  Prop 8 is then challenged in federal district court and it is declared unconstitutional.  The 9th Circuit on appeal agrees, ruling narrowly that once rights have been granted they cannot be retracted for some group without violating the Equal Protection clause.
    However what makes the CA case interesting is that the State of California refused to defend Prop 8 on appeal.  Instead, the district court let some of the supporters of Prop 8 intervene to defend it.  This is where the problems begin.
    On Tuesday the Supreme Court asked whether supporters of Prop 8 had a right to bring the suit.  The Court said that the appropriate party to defend Prop 8 was the State and that these individuals lacking standing to bring the case.  Moreover, several members of the Court also wondered whether these supporters had suffered any injury in fact or law.  By that, can they show how same-sex marriages harm them or traditional marriages?  The Court seem unconvinced by their answers. 
    The standing and injury issues are important.  If there is no standing or injury, the case would be dismissed.  If dismissed, the lower court decision would stand, thereby invalidating Prop 8, and therefore by default legalizing same-sex marriage in California.  Six of the Supreme Court Justices  suggested this is a possible direction they may go.  Effectively, they are closing the door of the federal courts and that may work to the benefit of advocates of same-sex marriage.
    The same closing of a door may also work to the advantage of the same-sex marriage in the DOMA case.  Here, the challenge is the 1996 federal DOMA law denying federal benefits to same-sex couples even in states where such marriages are recognized.   But again there is an oddity to this case–the Obama administration has refused to support the constitutionality of the law in court and instead is arguing against it while still enforcing the law. The law is defended by the Republican Leadership in the US House of Representatives and not by the president (whose job it is to defend federal laws).
    Why is this significant?  There may not be a case or controversy here.   If no one is defending the law then the case gets dismissed.  Several Justices expressed concern about this along with concerns about standing.  Given that a lower court had ruled against DOMA, refusal of the Supremes to rule on this case may mean that the lower court decision stands and DOMA is gone.
    Finally, in both cases majorities seemed unwilling to want to rule in a way that would create a 50 state rule.  They expressed concern that for the Court to act would pre-empt states from experimenting with marriage, a traditional state function.  This was Kennedy’s  issue concerning the DOMA case.  Other justices thought that gay marriage was such a new concept that they should let states do what they want.  Still others raised concerns that DOMA stood in the way of state action and that federalism  dictated that DOMA was unconstitutional.

So what does all this mean?
    These procedural issues are important and may work to the benefit of same-sex marriage supporters.  It is clear the Roberts Court wants not to rule on these cases.  Yes, there are some Justices who would rule that bans on same-sex marriage are unconstitutional.  But it is not clear that there are five votes to do that.  Moreover, the nature of the facts in these two cases make it difficult  to reach this kind of ruling.  Do not expect either of these two cases to be clear rulings to be similar to the famous Loving v. Virginia that declared that bans on mixed-race marriages were unconstitutional. 
    The Court here could use standing, injury, or the case and controversy concepts simply to throw out the cases.  What would that mean? Prop 8 is gone and same-sex marriage in California  is legal and the DOMA is unconstitutional.  This may not be the bigger ruling many want, but it is a long way toward constitutional recognition of same-sex marriage.

The Minnesota Connection
    Minnesota figured prominently in the Prop 8 case.   In1971 the Minnesota Supreme Court ruled in Baker v. Nelson that Minnesota state law prevented same-sex couples from marrying.  This was the first ruling on same-sex marriage in America and I have covered this case in my State Constitutional Law course for over 20 years.  That case was appealed to the US. Supreme Court and the Supremes denied to hear it in part presumably because it did not raise a federal question.  This case was discussed in the Prop 8 case in terms of whether the denial in Baker still represented good precedent for the Supreme Court to stay out of the same -sex marriage dispute.
    Assume DOMA or Prop 8 falls, what does it mean for Minnesota?  Legally maybe invalidation of the federal DOMA might raise questions about the MN DOMA (although the MN DOMA is about MN recognition of same-sex marriages performed in other states).  Depending on how the Supreme Court rules, it may open up legal challenges to the state law.   Additionally, if the federal DOMA falls, then if MN legalizes same-sex marriage the federal government will have to recognize the marriage.  It is less clear legally what the Prop 8 case means for Minnesota.
    However, culturally, decisions in these two cases will have a major impact on Minnesota. It may create more momentum for Minnesota to act legislatively, especially if the legislature does not act this year.

Last Thoughts: Kennedy’s Swan Song?
    Every year I do a training session at Reuters/Thompson/WEST on the Supreme Court.  About three years ago I argued that Justice Kennedy’s last vote on the Supreme Court would be to strike down laws banning same-sex marriage.  He would do that and then resign.  I still am betting that.  Kennedy will go out as the most ardent defender of GLBT rights ever on the Court.  He will do that as conservative old line Catholic who is pro-life, anti-death penalty (for minors at least), and who supports prisoner rights.  His decisions read of words about respect for all life and about human dignity–including for gays and lesbians.