Chief Justice John Roberts is usually a reliable vote among the conservatives on the nine-member court. Yet in NFIB v Sibelius (2012), he voted with the four liberals to find that the Affordable Care Act (ACA) was constitutional. He did so on narrower grounds than the four liberals, relying on the taxation power rather than the commerce clause. It is widely accepted that Roberts had originally intended to strike down the law, but changed his mind in the month beforehand, based in part on the political calculus that it would damage the Court’s political reputation were it to strike down Barack Obama’s key legislative achievement. It would have appeared too partisan for the five justices appointed by Republican presidents to vote to strike it down, with the four appointed by Democratic presidents to vote to uphold it, and affected the court’s reputation as a neutral umpire calling ball and strikes.
The ACA is back before the court this term, in King v Burwell, not on the validity of the law, but its application. But if Roberts did not hinder it in 2012, he is unlikely to do so now after so many have already taken advantage of it. And in this case, he has cover from Anthony Kennedy, who voted against the ACA in NFIB, seems likely to uphold its application in this case.
The blockbuster case of this term is Obergefell v Hodges and its related cases, which will be heard this Tuesday, and is likely to settle the question of equal marriage for gay couples in the United States. The court themselves admit the difference between it and other cases this term with a link to briefs for the case on their home page, and agreeing to release the audio recording of oral argument on Tuesday, rather than waiting till the end of the week as standard.
There’s no reason to expect that any of the five justices who struck down the Defense of Marriage Act in United States v Windsor (2013) will not apply similar reasoning to state bans on same-sex marriage. But Roberts was in the minority in Windsor. Why would he vote to strike down these bans at a state level if he would not do that to the federal legislation two years ago?
John Roberts was appointed as Chief Justice in 2005 at the age of 50. Four of the associate justices are aged between 76 and 82. We should expect that Roberts will remain leading the court till at least 2030. Roberts is politically astute enough to know that this case will be regarded as a landmark. Will he want to risk the opprobrium of legal analysts in a decade’s time appearing before him wondering how he could have got it so wrong? It’s easier for Antonin Scalia, not being in the pole position of Chief Justice, or indeed Samuel Alito, who like Roberts was appointed in 2005 by George W. Bush.
Scalia and Alito both gave lengthy dissents in Windsor, with which Clarence Thomas joined. Roberts, by contrast, wrote a succinct dissent, of a mere three pages. He joined Scalia only on the jurisdictional matter, finding that the court should not have decided the case at all, as the United States government was not contesting Edie Windsor’s claim. Roberts’ short dissent justified the Defense of Marriage Act on the basis of uniformity of marriage rules, rather than the blistering terms of Scalia’s dissent defending the enforcement of traditional moral and sexual norms.
Might Roberts wish to deprive Kennedy the pleasure of his place in history of completing a series of judgments in favour of constitutional protection to gay people. From Romer v Evans (1996), to Lawrence v Texas (2003), to United States v Windsor (2013), Anthony Kennedy wrote all of the case law progressing gay equality. Eric Segall recently wrote about the rivalry between Roberts and Kennedy for perceived control of the court.
The author who writes opinion of the court is assigned by the most senior justice in the majority. If the majority is the same five as in Windsor, that would be Anthony Kennedy, who will surely assign it to himself. But if Roberts were to join the majority as the sixth vote in favour of requiring all states to license a marriage between two people of the same sex, he could then choose to assign the opinion to himself.
So, both because he should be able to project the landmark status of the decision, and because of rivalry with the other moderate conservative voice, don’t be surprised if Roberts strikes down the bans. But aside from the politics of it, there’s nothing in any of his other votes on social reform cases to suggest that he will do so!
So the United States Supreme Court has granted certiorari in from cases on state bans on the marriage of gay and lesbian couples: Obergefell v Hodges (from Ohio), Tanco v Haslam (Tennessee), DeBoer v Snyder (Michigan), and Bourke v Beshear (Kentucky). These are appeals of the opinion of Judge Sutton in the Sixth Circuit, who found state bans to be constitutional in November, while the Fourth, Seventh and Tenth Circuit Courts had previously ruled against state bans.
There will be two questions before the Supreme Court:
- Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
- Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?
I fully expect them to answer both questions in the affirmative, reversing the judgment of Judge Sutton, recognising a constitutional guarantee of equal civil marriage in all fifty states.
Speculation has already focused on Anthony Kennedy. They are right to do so but not as a swing vote who could go yea or nay on either side. Most analysis factors in the likely breakdown of the court as four liberal justices likely to strike down states bans (Ginsburg, Breyer, Sotomayor and Kagan) and four conservative justices likely to uphold them (Roberts CJ, Scalia, Thomas and Alito), with Anthony Kennedy as the swing vote. To my mind, this mischaracterises the record of Kennedy on this topic, and the role he is likely to play when it comes to the opinion of the court (simplistic as any categorization of justices is, even as I divide them here).
The US Supreme Court has issued three full opinions which extended constitutional protections to gay people against discrimination by government: Romer v Evans (1996), striking down an amendment to the Colorado constitution denying protected status to homosexual or bisexual people; Lawrence v Texas (2003), striking down anti-sodomy laws in Texas, and consequently in 13 other states; and US v Windsor (2013), striking down Section 3 of the Defense of Marriage Act, which recognized only marriage between a man and a woman for federal purposes. The author of all three opinions was Anthony Kennedy. None of these were equivocal or half-hearted. What makes anyone think he’ll go thus far and no further? Read more…
Today, the US Supreme Court denied certiorari to challenges to decisions of the Fourth, Seventh and Tenth Circuit Courts of Appeal, which had in turn upheld decisions of federal district courts that bans on lesbian and gay couples from marrying in Indiana, Oklahoma, Utah, Virginia, and Wisconsin contravened provisions of the US Constitution.
This had the immediate consequence of bringing equal civil marriage to these five states. The effect of supreme court not taking a decision led to the biggest expansion by number of states seen to date.
The day continued, as Colorado dropped its challenge. So how does the Circuit system work, and which states could be next?
Beneath the Supreme Court, the United States is administered by geographically-based courts of appeals. This table details the division, with those states which at the time of writing have equal civil marriage for gay and lesbian couples highlighted in bold:
|1st||Maine, Massachusetts, New Hampshire, Rhode Island|
|2nd||Connecticut, New York, Vermont|
|3rd||Delaware, New Jersey, Pennsylvania|
|4th||Maryland, North Carolina, South Carolina, Virginia, West Virginia|
|5th||Louisiana, Mississippi, Texas|
|6th||Kentucky, Michigan, Ohio, Tennessee|
|7th||Illinois, Indiana, Wisconsin|
|8th||Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota|
|9th||Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington|
|10th||Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming|
|11th||Alabama, Florida, Georgia|
|DC||District of Columbia|
A rule of precedent applies at each of these levels. The district courts in the states are bound by decisions of the court of appeals of their own circuit, just as the circuit courts of appeal are bound by the supreme court. This is why the attorney-general in Colorado dropped the challenge so soon after the news today; with the decisions of the tenth circuit court of appeals that found bans in Utah and Oklahoma to be unconstitutional fully in effect, the same would result with any defence of the ban in Colorado.
We should then soon see a similar situation in North Carolina, South Carolina and West Virginia in the Fourth Circuit, and in Kansas and Wyoming in the Tenth, from a combination of state officials not defending the bans, and district court judges coming to swift decisions based on these precedents.
We are awaiting decisions from the Sixth Circuit, which heard arguments in the beginning of August, and from the Ninth Circuit, which heard arguments at the beginning of September. While the court in the Ninth Circuit seemed to follow the trend of most federal courts, in being more critical of the arguments for maintaining the bans, this is less certain in the Sixth Circuit. Listening to the oral argument, I would agree with Stern that Judge Sutton didn’t seem eager to press ahead with this. However, a few things have changed since early August, from Judge Posner’s excellent, cutting judgment in the Seventh Circuit, to the denial of cert by the Supreme Court today.
In the Sixth Circuit, Judge Sutton asked on a number of occasions why he would not be bound by the precedent of the Supreme Court in Baker v Nelson (1971), in which the court wrote succinctly on a Minnesota case on a gay couple, “The appeal is dismissed for want of a substantial federal question”. This was a mandatory review, so was considered binding on the merits. However, with the denial of cert today, Judge Sutton can no longer hide behind Baker, as the Supreme Court has effectively that it doesn’t see the decisions favouring equality as a challenge to its precedent.
I don’t think the Supreme Court will hear a case unless and until any of the circuit courts uphold the constitutionality of a state ban. This could occur in the Sixth Circuit; it could also occur in the Fifth Circuit, which will be hearing cases relating to Texas and Louisiana soon. These are appeals to ban in Texas which was struck down, and a ban in Louisiana which will be upheld.
Equality advocates want the Supreme Court to hear a case on this matter sooner rather than later, to lead to an opinion that with one fell swoop would bring equal civil marriage to gay and lesbian couples across the whole of the United States. There is little reason to suppose that any of the five who voted to strike down a section of the Defense of Marriage Act in United States v Windsor (2013) would not also strike down all bans as unconstitutional, least of all the one who wrote that judgment, Justice Anthony Kennedy. The four who would have upheld DOMA surely suppose the same thing of their colleagues as the rest of us.
There is another interest too here, that of standing by the sovereignty and competence of lower courts. It is within their remit to determine constitutional questions within their jurisdiction; the Supreme Court should not hear a case simply because there’s public demand for a decision of a lower court to be extended.
It takes four justices to grant cert to a case. In the case of these circuit decisions, the five were of course happy to let them stand; the four may not have agreed with them, but not either wish to hasten the moment when the court would rule for equality for all.
This is why supporters of equality might paradoxically hope that either the Fifth or Sixth Circuit Courts of Appeals will decide to uphold bans. Not only would there then be a circuit split, but a result the anti-DOMA 5 would surely feel confident to see challenged before the whole court.
We’ll wait and see.
The new term of the US Supreme Court begins today, and their docket for this term will begin to fill up. The nine members of the court decide themselves which cases to hear, of the many appeals from lower court decisions across the country. Among they many they could choose this term are a number of defences to state bans on either the recognition or performance of marriage between couples of the same sex. This would lead to a decision affecting all US states by June 2015. It is not long since the Supreme Court last considered cases relating to marriage, when they ruled on United States v Windsor in 2013, leading the federal recognition of marriages between same-sex couples as performed by these states. Why makes these cases different?
A lot of the commentary in June 2013 spoke of the compromise the court reached, in striking down the ban on federal recognition in Section 3 of the Defense of Marriage Act (DOMA), while declining to consider the implications of the other case before it beyond California. This is a simplistic view of that case. This second case that year was Hollingsworth v Perry, a case which originated as Perry v Schwarzenegger, the culmination of a challenge to Proposition 8, the 2008 ballot initiative which had added to the California constitution the clause, “Only marriage between a man and a woman is valid or recognized in California”. In August 2010, US District Court Judge Vaughn Walker became the first of many federal judges to find a ban on same-sex marriage to contravene the US constitution. The state of California accepted the court’s ruling, and the appeal was taken up by those who had campaigned for Proposition 8. The Supreme Court that they did not have standing to do so, i.e. they did not have a direct stake in the outcome. It remained a matter for an organ of the state to defend a state law. Rather than being a formula drafted to dodge addressing a hot-button issue too soon, it would have been more questionable had they decided to consider the case. In 1996, the court came to a similar conclusion in Arizonans for Official English v Arizona, and the court should adhere to its precedents unless there are clear and compelling reasons to revisit a previous ruling.
Windsor ruled on Section 3 of DOMA, as this was the only question before it in that case. Writing the opinion of the court, Justice Anthony Kennedy held in clear and eloquent terms that the provision was unconstitutional. He wrote with an understanding of the change in attitudes we are witnessing, “until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage … Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community”. After acknowledging the many harms of such a ban on recognition, including to the children of same-sex couples, Kennedy concluded “What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution. The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws.”
While Justice Kennedy did spend a considerable portion of the opinion defending the right of the states against the federal government in relation to marriage, this was in support of New York in including same-sex couples. Citing Loving v. Virginia (the 1967 case which ended state bans on interracial marriage), he wrote “State laws defining and regulating marriage, of course, must respect the constitutional rights of persons”.
Following this judgment, many cases proceeded in federal district courts challenging state bans. The first judgment was in December 2013 in Utah, where Judge Robert Shelby cited not only the opinion of Kennedy in Windsor, but also the dissenting opinion of Justice Antonin Scalia, who predicted that it would be a very small step from striking down the federal provisions in DOMA to striking down the bans in the states. Ten other district court judges came to the same conclusion when considering state bans across the country, ruling each of them unconstitutional; in September, Judge Martin Feldman in Louisiana became the first to write a court opinion upholding such a ban.
While some of these decisions applied with brief effect, most of them were stayed pending further appeal, so marriage has not been extended in these states (Pennsylvania being an exception, where the state accepted the opinion of the district court).
The Circuit Court Appeals have issued opinions in the Tenth Circuit (cases from Utah and Oklahoma), in the Fourth Circuit (from Virginia), and in the Seventh Circuit (cases from Wisconsin and Indiana), and in all cases upholding decisions that state bans are unconstitutional. Crucially, in all these cases, officials from the state are defending the ban, distinguishing them from the situation in California.
The Supreme Court may now decide to take any one or all of these cases. If they choose not to hear those cases this term, then the circuit court decisions will stand, and marriage will be extended in those states, and nearly immediately in other states in those districts. However, the supreme court may wish to wait until there is a circuit split, i.e. when there are conflicting interpretations of the constitution from different circuit courts. It remains possible that appeals in other circuits will find in favour of the constitutionality of state bans; this seems quite likely to be the outcome in the Sixth Circuit, where Judge Jeffrey Sutton was quite skeptical of the merits of the constitutional case for equal marriage at oral argument in cases from Michigan, Kentucky, Tennessee and Ohio. If this occurs, it is almost certain that they will be heard this year.
While those of us following the developments will wait eagerly to hear from the court today, I wouldn’t be holding my breath. In 2013, I tuned in on a weekly basis to whether they would take the Perry case, and which DOMA case they would consider; it was not until 7 December that this information was revealed.
Which still means that before Christmas, we should expect to know of a date in the spring when the Supreme Court will hear cases relating to the constitutionality of bans across the whole United States, with an opinion in June. I will of course return to this, to outline in clear terms why I believe they both should and will find that there is a constitutional right for couples of the same sex to marry, throughout the United States.
For the last few years, it’s been known that we will have a referendum on whether gay and lesbian couples can marry in this country. I’ve generally been cautiously optimistic, believed that with a good campaign, we will win this. I trust in the fundamental decency of the Irish people, when asked to consider this, will think of those they know, and give us the same chance to marry as others have.
Till this week. This was never going to be an easy campaign. Now we see it’s not going to be a fair campaign. Rory O’Neill spoke honestly on the Saturday Night Show about how media commentary is still one of the few areas he regularly witnesses speaking in a discriminatory way towards gay people. Let’s not forget that in the article about gay priests by Breda O’Brien which he referred, she claimed Roman Catholic doctrine on gay people (that we are intrinsically disordered towards an objective moral evil) is fair enough because they view gay relations in the same way as lying or gluttony, while not hating those who lie or overeat.
Someone who groups gay relations with these other traits should expect their motives questioned when they proceed to argue that we should be denied the chance to marry or raise children. Or similarly John Waters, who assumes we are engaged in a massive plot to bring down marriage because of envy, should not expect anyone to think that he thinks of gay people in the same way as the rest of the population. To question our motives, to think the time someone like myself has spent on this cause is about anything other than a hope that I might marry, and that any two who find that happiness in each other can do the same. And I will wonder about an institute which is reckless as to the relevancy of a study it cites in a proposal (which was otherwise poorly-referenced) to the constitutional convention to argue against our equality.
Rory O’Neill’s analysis was sophisticated. It was O’Connor who raised the word homophobia, and O’Neill then considered how prejudice can exist within us, to a greater to a lesser extent, and that it is something that we need to be aware of within ourselves. Someone who is “spending so much of [their] life, devoting energies to writing things, arguing things, coming on TV to do anything to try and stop people achieving what they think they need for happiness” does need to take the time to consider if what they are promoting is properly something they can stand by.
All of the material that Rory O’Neill challenged is in the public sphere. Anyone can read the articles Breda O’Brien, John Waters or David Quinn write week on week in the two bestselling daily newspapers and make their assessment. They can each respond in these columns if they wish. I fail to see how the comments on the Saturday Night Show could “injure their reputation in the eyes of reasonable members of society”. All they tell us is the assessment by a prominent gay activist of the journalistic and lobbying work of individuals mentioned. Someone might read their work in a differently in light of O’Neill’s assessment, but it could not be his comments that cause any injury to their reputation. To my mind, this is before we consider the defence of honest opinion, provided in section 20 of the Defamation Act 2009. (Again, ultimately I’ll defer to those with more legal knowledge; perhaps Brian Barrington, whose open letter was widely distributed yesterday.)
What followed was a shameful sequence from RTÉ, which bear repeating: action was taken against RTÉ and Rory O’Neill by members of the Iona Institute and by John Waters; the section of the interview was removed, with an odd reference in the explanation of it to the unfortunate death of one of their colleagues, despite the fact that he was not named and that the death occurred after the interview; Brendan O’Connor read an obsequious apology, which sounded as if was drafted by the staff of Iona; and RTÉ paid damages to the Iona Institute.
The term Orwellian may be overused, but as the use of political language to describe exactly the opposite of what it means, the line in the apology “It is an important part of democratic debate that people must be able to hold dissenting views on controversial issues” in explaining why they censored a guest and paid damages to those who didn’t like his comments fits the description perfectly. Iona also talk without any sense of irony of O’Neill attempting to bring the debate to an end, while they are the ones who have spent the past 12 months sending solicitors’ letters to their harsher critics.
While I’m sure Iona are delighted to have some more money for their campaign against equality, I don’t think this was mainly about cash. This will have a chilling effect on RTÉ scheduling over the next year and a half. They will be much more cautious about when and how they have outspoken lesbian, gay, bisexual or transgender guests on air. This will lead to our lives being discussed only from the perspective of a live, controversial debate. Instead of treating the fullness of our lives. This is why I am now much more concerned for the result, if it will take place with terms of debate set by the Iona Institute.
It’s trivial to say it, but most of our lives are just plain ordinary, including our romantic lives. But homophobia is unfortunately still part of our lives. Far much less so than it was, and to a rapidly decreasing degree. But it exists. I’m lucky to have experienced relatively little, but I have in my time heard homophobic comments, even from people I’ve been friends with, and not always had the guts to call them up on it. I know people have experienced much worse. There is still homophobic violence or verbal abuse. This is one of the aspects of why next year’s referendum result matters. Even for those who may not wish to marry, or for young people who are many years from even considering marriage, it matters. For as long as the state continues to treat us differently, others will take the opportunity, consciously or subconsciously, to do the same. Conversely, a strong vote in favour of equality will surely quicken the pace of the decline of homophobia as an acceptable prejudice.
So yes, our focus ahead of the referendum will be on the happiness we hope for from marriage, to do so just as our parents could, for the same reasons as anyone else would. But we can’t ignore or sideline the context of a legacy of prejudice against us and the problem with homophobia, however softly spoken.
On the Future Matters blog, Rachel Mathews-McKay wrote in defence of the Seanad under the headline, ‘The Seanad has stood with our LGBT Community’. It is true that two of the most well known senators, Mary Robinson and David Norris, played crucial roles in advancing equality for gay people in Ireland. But should this lead us then to credit the institution of the Seanad for this progress and for it to be retained because of this legacy? Does my activism on gay rights conflict with my enthusiasm for abolition of the Seanad? Let’s examine the history in greater detail.
The Campaign for Homosexual Law Reform began in 1975 with David Norris, a member of the English Department at Trinity College Dublin, as it most prominent member. Its legal advisor was Mary McAleese, who was succeeded in that role by Mary Robinson in 1979. The 1885 law which had convicted Oscar Wilde, and which had been largely repealed in England and Wales in 1967, was still in effect in Ireland.
Mary Robinson had been elected as one of the three University of Dublin senators in 1969 (continuing there till 1989), but it was through her actions as a legal counsel that she was most successful in bringing about social change, whether on this question or on many others. When David Norris sued the state on the claim that criminalisation of homosexuality was unconstitutional, Robinson acted as his barrister. In Norris v. AG, the High Court ruled against him in 1980; on appeal to the Supreme Court, they too ruled against him in 1983.
They filed in the European Court of Human Rights in Strasbourg. Ireland was a signatory of the European Convention on Human Rights in 1947, and Northern Ireland resident Jeffrey Dudgeon had successfully sued there in 1981 in Dudgeon v. United Kingdom to secure the repeal of the law, which still then applied in Northern Ireland. The law was changed for Northern Ireland in 1982 (a separate law had been passed to apply to Scotland in 1980).
In 1987, David Norris was elected as one of the three University of Dublin senators, in large part in recognition of his work in this campaign.
With US Supreme Court upholding two lower court rulings, Edie Windsor has been successful in her challenge to Section 2 of the Defense of Marriage Act, which defined marriage at a federal level as between a man and a woman.
This means that gay couples who marry in the states of Connecticut, Delaware, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New York, Rhode Island, Vermont and Washington, and in the District of Columbia.
In the case to uphold Proposition 8, Hollingsworth v. Perry, which began as Perry v. Schwarzenegger, the Supreme Court ruled that Dennis Hollingsworth did not have legal standing to challenge the District Court ruling. He heads Protect Marriage, the group that pushed to get Proposition 8 on the ballot, but the Court ruled that this did not give him a right to challenge what was a state law, and therefore within the remit of the governor and attorney-general of California, Gerry Brown and Kamala Harris, to challenge the lower court rulings, and both of them support agree that Proposition 8 was unconstitutional.
This decision is legally sound, and has precedent in Arizonans for Official English v. Arizona. It is almost surprising then that Court granted cert to the case, and we’ll never know which of the four decided to do so.
So gay couples will soon be able to marry again in California, having been able to do so during a few months in 2008.
I was particularly pleased that Justice Anthony Kennedy wrote his opinion based on equal protection, rather than states’ rights. This is the third major gay rights ruling of his, afterRomer v. Evans in 1996, which overturned exemptions of gay people from discrimination laws, and Lawrence and Garner v. Texas ten years ago today in 2003, which overturned remaining anti-sodomy laws. All in all, a strong ally for gay people on the bench. Will he have a chance to go one further and extend marriage for gay and lesbian couples nationwide?
We will have to wait to get a challenge from a couple in a state whose governor and attorney-general will continue to defend such a prohibition all the way to the supreme court, and preferably in a state where there is a reasonable prospect of a district or circuit court ruling in favour of equal marriage.