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.

[...]

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.

[...] 

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.

Kenji Yoshino Predicts Fate of Prop. 8 at UCLA

Kenjo Yoshino, the openly gay Chief Justice Earl Warren Professor of Constitutional Law at the New York University School of Law, gave the Closing Keynote lecture at the Williams Institute's 11th Annual update at UCLA Law School. It was an astonishing speech and I feel incredibly lucky to have been in the audience to hear it. The official title was "Are Gay People Politically Powerless Today?" For just over 45 minutes Prof. Yoshino spoke without notes, giving a cogent response to the titular question in one of the most insightful, intellectually stimulating and well-organized oral presentations I have ever witnessed.

The talk was split into three sections, which Prof. Yoshino outlined at the beginning of his presentation. First, he explained why the answer to the question about whether gay people are politically powerless is still an important and salient one. He then presented one answer to the political powerlessness question from a sociological or political science perspective and then gave another (different) answer from a legal or doctrinal perspective.

During his riveting talk Prof. Yoshino repeatedly quoted verbatim from various sources, such as the United States Constitution, Supreme Court cases and famous law review articles. He started with a quick primer on constitutional equal protection jurisprudence (i.e. since 1977 there have been no new suspect classifications added to the list of the current five of race, sex, alienage, national origin and marital status of one's parents) which would provide the terrain for his intellectual sojourn. The central thesis of his talk (which he summarized at the end) was that LGBT people are both politically powerless and politically powerful to receive heightened constitutional protections. He made the counterintuitive point that a minority group actually needs to have a significant level of political power before the Supreme Court will recognize that the group is politically powerless enough to grant it judicial protections. He supported his mind-bendingly paradoxical claim with evidence from the history of how race and gender came to receive heightened judicial review.

I can't produce a complete summary of his talk which will do justice to his presentation (I did not take notes) and I do not have an eidetic memory as Prof. Yoshino appears to. To bolster support for the idea that he is not the only person who thinks that LGBT people are both politically powerless and politically powerful Prof. Yoshino made the point that opponents of LGBT equality also subscribe to this notion. They repeatedly say that LGBT people are politically powerful because they can get 48% of the population to vote in their favor in Proposition 8 while simultaneously crowing about how politically powerless LGBT people are because we have lost 31 statewide anti-equality ballot measures. He also noted that when measuring the political power of a minority group one should think about the political power of its opposition, i.e. think about the "net political power" versus the "gross political power" of the group. Looking at it that way, the LGBT community primarily has a religious-based opposition, in a very religious country. For example, Prof. Yoshino reminded us that in the now infamous CNN exit poll 84% of people who said they attended church services at least once a week votes YES on Proposition 8 (the anti-equality position) while 83% of the people who said that they attended church services infrequently voted NO on Proposition 8. Thus the correlation of religiosity with opposition to LGBT equality was dramatically demonstrated.

The key part of his talk came when Prof. Yoshino placed the discussion of the political powerlessness question in the context of the most important legal case facing the LGBT community today, i.e. the Perry v. Brown federal lawsuit challenging the constitutionality of California's 2008 same-sex marriage ban Proposition 8, which is expected to reach the United States Supreme Court in the next term. Prof. Yoshino said that he sees that there are at least 6 possible ways that the Supreme Court could rule on the Perry  case when it reaches the High Court: a zero-state solution, one-state solution, a one-plus state solution, a 7-state solution, a 50-state solution and a status quo solution.

Here is a summary of the six possibilities identified by Prof. Yoshino:

1. Zero State Solution. USSC rules that there is no fundamental right to marry, therefore producing no new states with marriage equality. 
2. One State solution (California only): USSC rules that proponents do not have standing to appeal and thus Judge Vaughn Walker's initial ruling (which invalidates Proposition 8) would reinstate marriage equality in California only.
3. More Than One State solution (California plus possibly Maine, Washington and Maryland): USSC affirms Judge Stephen Reinhardt's decision which ruled Proposition 8 invalid because a state can not provide a benefit (marriage equality) and then rescind that benefit using a process animated by animus. Thus California which had marriage equality for 173 days in 2008 and then had the right to marry for same-sex couples stripped from the state constitution would have that right restored. Prof. Yoshino specifically mentioned Maine as a state which might have a colorable claim to have marriage equality restored since in 2009 a marriage law was repealed by a "people's veto" referendum. I'm not sure I agree with Prof. Yoshino here because Maine's marriage law (like Washington's and Maryland's if heterosexual supremacists gather enough signatures this summer) never went into effect, due to that state's referendum process, and thus I doubt that it really fits into Reinhardt's rationale for his ruling in Perry.
4. Seven State Solution (States which have "everything but marriage laws": California, Washington, Oregon, Hawaii, Illinois, Nevada, and New Jersey). USSC rules on equal protection grounds that there states can not provide all the tangible and legal rights and responsibility of marriage and deny the word "marriage" thus converting all states with civil union/comprehensive domestic partnership laws into states with marriage equality laws. 
5. Fifty State Solution. USSC rules that the fundamental right to marry can not be abrogated due to the sexual orientation of the persons exercising that right. All state DOMAs and mini-DOMAs in 30-plus states are struck down and marriage is legalized in the 44 states which do not currently have marriage equality right now.
6. Status Quo Solution. USSC affirms whatever the en banc panel of the 9th U.S. Circuit Court of Appeals decides, maintaining the status quo provided by that still-to-occur ruling. 

Prof. Yoshino stated that he expected the USSC to most likely select between Options 2, 3, 4 and 5 and briefly discussed why. He basically explained that the High Court will need to decide if a ruling in Perry will be received by the country as a repeat of 1954's Brown v. Board of Education or 1973's Roe v. Wade. Generally both of these landmark decisions are considered by scholars as actions by the Court that were ahead of public opinion. However Brown is looked on as a successful use of judicial power while even Justice Ruth Bader Ginsburg has said that the Court moved too quickly in Roe, thus endangering the legitimacy and permanence of the announced right. A USSC decision which chooses Option 5 above could lead to an even stronger backlash, such as a federal marriage amendment to the United States Constitution that, if ratified, would ban marriage equality in all 50 states, which would mean that effectively the community would go from having marriage equality in 50 states to zero states: a catastrophic result.

The questions afterward (by such luminaries as UCLA Law Professor Devon Carbado, Georgetown University Law Professor Nan Hunter, and Rhodes Scholar and Yale Law School grad Craig Konnoth) focused on this question of whether Perry will be more like Brown or Roe or will the LGBT community have to wait until there is a fact pattern like Loving, where a mere 16 states banned interracial marriage so despite overwhelming public opinion against interracial marriage, the Court  still eliminated those laws. In the case of same-sex marriage, it is much more likely that public opinion will be overwhelmingly in favor of marriage equality while there is still a solid majority of states banning the practice. How will the court decide what to do in that case?

All in all, the talk was a very important and exciting event, organized by the always-impressive Williams Institute at UCLA Law School.