READ: My Fave Law Profs Opine On Sup Ct Actions

Reader of this blog may know that I am familiar with numerous openly LGBT law professors. Some of my favorites are NYU Law Professor Kenji Yoshino, Georgetown Law Professor Nan Hunter and Yale Law Professor Bill Eskridge.

Professor Eskridge and my friend Hans Johnson published a commentary about the Supreme Court's actions to take the Proposition 8 case Hollingsworth v Perry and the DOMA case U.S. v Windsor on ScotusBlog:

So what should the Supreme Court do in Windsor and Perry? Surely, the Court ought not uphold DOMA, a law that disparages LGBT citizens and that creates needless expense and confusion among those administering federal law. Nor should the Court uphold Proposition 8, which entrenches second-class citizenship for LGBT persons and couples in state law. Supreme Court opinions upholding DOMA and Proposition 8 would be blunders right down there with Korematsu v. United States (upholding the internment of Japanese-American citizens) and Bowers v. Hardwick (upholding a state law criminalizing consensual sodomy).

The Court has preserved for itself other options for handling these same-sex marriage cases, however.  In the order taking review in both Windsor and Perry, the Court pointedly expanded the issues for review to include questions about the constitutional standing for the intervenors supporting DOMA in Windsor and Proposition 8 in Perry. The Court is more likely to dismiss the appeal in Perry than the appeal in Windsor on this procedural ground, but we have no prediction as to how likely it is that Perry will turn on that issue.

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As it did concerning marriage equality for different-race couples, the Supreme Court should move slowly but deliberately toward marriage equality for same-sex couples. If constitutional equality has any bite today, the Court ought to affirm the Second Circuit in Windsor, invalidating DOMA’s central provision, based on the closer-than-usual scrutiny outlined by the First Circuit.  If the Justices find constitutional standing for the initiative’s nongovernmental supporters in Perry, the Court ought to affirm the Ninth Circuit, invalidating California’s Proposition 8 based on the rational basis review conducted by the lower court.

Addtionally, Profesor Yoshino publishes his thoughts on the Proposition 8 case which he had previously presented at the UCLA Law School in April 2012:

The first premise is that the Court will strike down DOMA. I agree. DOMA represents an intrusion of federal law into the traditional state domain of family law.  As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle — Justice Kennedy — has historically favored both.

The second premise is that the Court will wish to proceed incrementally — that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus.

It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop. 8 in at least three ways.

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The procedural one-state solution 

Under the procedural one-state solution, the Court would find that the proponents of Prop. 8 lack Article III standing to bring suit.

The substantive one-state solution 

The Court could also adopt a substantive one-state solution, which was the rule adopted by the Ninth Circuit panel. The Ninth Circuit held that under the Equal Protection Clause, a state could not grant an entitlement and then take it away without a legitimate reason. 

The substantive eight-state solution 

Yet another breakpoint on the spectrum would focus on the lack of justification for giving same-sex couples all the rights and responsibilities of marriage but withholding the word “marriage” from them. This resolution differs from the Ninth Circuit panel’s ruling because it removes any issue of retrogression from the analysis. What is important is not that California went all the way to same-sex marriage and then retreated, but rather that California went all the way to “everything but marriage.” Once it did so, it reached the point of no return. Currently, seven states besides California would be affected by such a ruling: Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island.

I am sure there will be volumes and volumes of commentary written on the certiorari decisions in Perry and Windsor but I doubt you will read more insightful or perspicacious analysis than these written by Yoshino and Eskridge.