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    Ann Rostow: We’re on the Docket

    1-Ann RostowBy Ann Rostow

    We’re on the Docket

    On Friday, January 16, the Supreme Court announced that it will review the Sixth Circuit marriage cases, scheduling briefs by mid-April, with a decision (presumably) expected by the end of this term, late June. I say presumably, because you never know what this Court might do, and perhaps some of you legal scholars recall that the Brown Court sent the famed desegregation case back for additional briefing, delaying its resolution by a year.

    So, two of the bad things that could have happened didn’t happen. The Court did not delay the question of marriage equality, pushing the cases to next year and freezing the issue for 18 months. Nor did they reject the cases, a far-fetched prospect that would have left in place a constitutionally chaotic mix of policies that varied from state to state. (No one seriously expected the justices to duck the cases. That said, very few people expected them to duck the marriage cases last October either.)

    In its announcement, the Court said it would address two questions: First, are states constitutionally required to marry same-sex couples? Second, are states constitutionally required to recognize legally married same-sex couples who got married outside their borders?

    Clearly, a “yes” to the first question makes the second question moot, so why not just focus on one issue? Given the two-pronged instructions, some analysts jumped to the (erroneous) conclusion that the Court might be setting the stage for a nifty compromise. Why not just rule that states can set their own licensing policies but, in turn, they cannot ignore those couples who married legally in other states? Such a ruling would maintain state authority, but it would also effectively legalize marriage throughout the country.

    Actually, when the Windsor opinion was first released, it seemed possible that the High Court might end up with exactly this position. Windsor, you remember, concerned marriage recognition, not marriage equality. The most obvious stepping stone from Windsor to full marriage equality would indeed have been a ruling that mandated marriage recognition by conservative states without necessarily forcing the states to conduct gay weddings on their territory.

    But that was back in June of 2013, when Windsor was fresh off the presses. Since then, dozens of federal courts have ruled, not just in favor of marriage recognition, but also in favor of marriage equality. The “compromise,” so nice in theory, would now have the effect of overturning four federal appellate courts, and a raft of lower court decisions. Do you think Idaho or South Carolina would continue to issue marriage licenses once the High Court said they didn’t have to? Answer: no. Do you think the Court wants to trigger a massive roll back of marriage policies in a dozen states? Answer: no.

    Moreover, there’s a reason the Court asked for arguments on both questions. Two of the cases under review involve marriage recognition only. The Court has also told litigants in those cases that they may not delve into the pros and cons of marriage equality, but they must limit their briefs to what I’ll call the side issue of why a state cannot ignore another state’s same-sex marriage. The justices have also split the oral arguments between the two issues, allocating ninety minutes to marriage equality and sixty to recognition. In other words, the Court raised two issues, not for strategic purposes, but simply because the cases under review dealt with both issues separately.

    What Will Roberts Do?

    So now what? Are we home free, or are there more hypothetical stumbling blocks on our path to equality?

    One thing I think we know is that this Court, which (through inaction) deliberately legalized marriage in nearly 20 states, is not going to rule against marriage equality. And although I’m not sure I’d call it a stumbling block, the most worrisome outcome might be this: What if Chief Justice Roberts decides that he does not want to ally himself with those on the Court who would flatly oppose the right to marry? What if he then assigns himself the opinion? What if he then goes on to write that opinion in the narrowest possible terms, creating no significant legal precedent for the gay rights movement going forward?

    True, the Chief might not be able to get away with a really bad opinion, since the other five members of the majority would not sign on. But he could water it down quite a bit, perhaps forcing the more liberal justices into concurrences, separate statements that say they agree with the majority’s result, but would have gone further. Unfortunately, concurrences don’t advance constitutional law, and the last thing we want is a messy conglomeration of individual essays on the constitutional status of gays in society.

    Desperately Seeking Scrutiny

    And why does this matter so much? Surely a national victory for marriage equality would be enough of a triumph, regardless of the underlying legal mechanics.

    To some extent that’s true. But although the right to marry might be the ultimate institutional expression of gay equality, it’s not the only one. Discrimination won’t end with marriage equality, and indeed conservatives are avidly plotting to use “religious freedom” as a hook for discriminating against gays and gay couples once the marriage battles are over.

    Those tactics simply won’t work if the Supreme Court rules that bans on gay marriage violate the right to Equal Protection, and that sexual orientation discrimination is inherently suspicious. Policies that have a disproportionate impact on a particular race or religion or gender are automatically scrutinized, and are rarely left intact by federal courts. Why? Because even if it’s not spelled out, there’s a possibility that bias is at their root, ergo the expression “suspect class.” Our lawyers have long insisted that antigay laws should be given similar treatment by the courts, and if the Court agrees next June, such an opinion would neutralize any effort to enact loopholes for faith-based discrimination.

    Unfortunately, that’s a long shot. Chief Roberts would never write such an opinion, and Justice Kennedy is well known for his vague, albeit welcome, gay rights rulings. And surely, if Roberts stayed in the minority, he would never assign a gay opinion to anyone but Kennedy, right? Justice Kennedy, who authored the decisions in Romer v Evans, Lawrence v Texas and USA v Windsor, is the gay rights justice, period.

    The next best thing would be an Equal Protection ruling that heavily implies the suspect status of sexual orientation without coming right and saying so. Indeed, last year the Ninth Circuit ruled that gay bias deserves heightened scrutiny based on a between-the-lines reading of Justice Kennedy’s mysterious opinion in Windsor. A stretch perhaps, but at least the happy conclusion was within stretching distance of Kennedy’s opaque rationales.

    But perhaps the most direct legal route to a gay marriage victory is the simple argument that marriage is a fundamental right, and that gay couples are not excluded. Fundamental rights like marriage, parenting, the right to vote, and others, are given preferred treatment under constitutional law, but conservative courts have long argued that while “marriage” is indeed fundamental, “same-sex marriage” is somehow different. The trick of limiting a fundamental right by messing with its definition has been used in other contexts, but it doesn’t really work. Do you have a “fundamental right” to sit around naked drinking scotch and watching porn in the middle of the night? Put that way, it hardly sounds like a time-honored mandate of liberty but, in fact, it is.

    Likewise, marriage rights have been upheld for mixed-race unions, for prisoners, for deadbeat dads, and a host of other heterosexual challengers. No one ever asked if there was a “fundamental right to marry an incarcerated felon.” The Court just looked at the right to marry on its own.

    It’s an easy step to add same-sex couples to the list, but it’s a move that does not necessarily create a precedent that will translate to discrimination cases down the line. It could, if it were written to do so. But it doesn’t have to. I mean, think about it. Mixed race couples are fine. But convicted felons and deadbeat dads? If you wanted to limit the opinion, you could just imply that even the most morally suspect individuals have the right to marry, so why not gays and lesbians? No one would put that in writing, but that sort of underlying impression would hardly carry over to the religious freedom battles that likely lie ahead.

    Thirteen States Left

    I was just checking my last column to make sure I have already covered the news that Florida became the first state to legalize marriage without an appellate court order. Yes, indeed I wrote about it, but it seems I wrote that Florida became the 36th marriage state, when in fact it’s the 37th. I love getting to the point where I lose track of the number of states that allow marriage equality.

    Meanwhile, on January 9, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit heard arguments on marriage cases from Texas, Mississippi and Louisiana. Normally we write off the highly conservative Fifth Circuit as an automatic loss, but this time we may have lucked into a fairly decent trio of judges; one Obama appointee and two Reagan picks who all seemed highly skeptical of the tired arguments from our adversaries.

    Now, the question becomes: Will the Fifth Circuit just freeze its cases in deference to the High Court, or will the panel go ahead and rule? If it does rule, and if it rules for us, will the other side appeal to the full Fifth Circuit? If they do that, will the Fifth Circuit issue a stay on marriages pending High Court action? I’m guessing that the panel will want to go on record in favor of equality, and that the ruling will be stayed.

    Does it really matter? Not to you, but I live in Texas, I’m married, and I’m the one writing this column. For most of the country, amazingly, the issue of marriage equality has become a matter of principle only. But, for some of us, it remains a personal challenge.

    I buy my own exorbitant health insurance. If I keeled over tomorrow, Mel would not receive my social security benefits. If she got hit by a truck, I would not receive her pension. I still don’t trust that the Emergency Room staff would let either of us in during a medical crisis. In fact, I’m confident that a rightwing nut on duty would insist on “family members only,” even though there’s an executive order mandating hospital access for same-sex partners.

    One of the most annoying setbacks to an unrecognized marriage is trying to settle some business issue involving our house (in her name) or some other thing. I either have to pretend to be her, and hope that no one asks me an arcane personal question, or I have to wait for her to get home from work and force her into an unpleasant telephone session when all she wants to do is crash and have a cocktail. I feel more married since Windsor, but in Texas I still don’t feel married enough. Let’s just say that late June can’t come fast enough for me.

    I’m almost out of space, but after feasting on the poached lobster and caviar of SCOTUS speculation, I haven’t the mindset for gay news tidbits. Plus, there’s not that much out there because the prospect of imminent marriage equality has sucked up all the GLBT oxygen out there.

    By the way, I’ll be interested to see who goes forward on our behalf before the High Court. Surely we won’t have five or six different advocates from Ohio, Michigan, Tennessee and Kentucky, all seeking their fifteen minutes of fame? Oh, and the Justice Department will be filing a brief too, so would the Court give them some minutes in deference to the executive branch? We could have quite the zoo. Oral arguments have not been scheduled, but people are guessing they’ll be held in late April.

    We live in interesting times.