Last month, the U.S. Supreme Court issued two eagerly anticipated rulings in major gay marriage cases. In United States v. Windsor, the challenge to the Defense of Marriage Act, the Court struck down Section 3 of DOMA. In Hollingsworth v. Perry, the challenge to California’s Proposition 8 ban on gay marriage, the Court held that the petitioners lacked standing to appeal, vacated the decision of the Ninth Circuit, and remanded with instructions to dismiss the appeal for lack of jurisdiction. This left the district court’s ruling intact and had the effect of allowing same-sex marriages to take place in California (although there’s some litigation winding its way through the courts on this matter).
Now that we have the decisions, let’s take a deeper dive into them. What do they reflect about the Court’s role in society? And what can we expect from future SCOTUS rulings in this area?
Last night, I headed over to the fabulous midtown offices of Proskauer Rose — the best offices in Biglaw, as picked by readers of Above the Law — to attend a fascinating panel discussion, After Perry & Windsor: A Conversation about the Supreme Court’s Rulings. It was co-sponsored by LeGaL and Proskauer’s LGBT Affinity Group, and it featured the following experts on the legal battle over same-sex marriage:
- William N. Eskridge Jr., John A. Garver Professor of Jurisprudence at Yale Law School;
- Linda Greenhouse, Senior Research Scholar in Law at Yale Law School and former Supreme Court correspondent for the New York Times;
- Evan Wolfson, Founder and President of Freedom to Marry; and
- Brad Snyder (moderator), Executive Director of LeGaL – The LGBT Bar Association & Foundation of Greater New York.
Brad Snyder, in his role as moderator, began the discussion by quoting from a paper on marriage equality that Evan Wolfson wrote back in 1983. At the time, Wolfson expressed criticism of the Supreme Court’s early rulings on same-sex marriage, in which the Court gave marriage equality the back of the hand. Snyder asked Wolfson to comment on his prior writings in light of recent developments.
Wolfson said that what he wrote in 1983 remains true today: “We have the right to full participation in society under the Constitution. We have to stand up and claim it, in the court of public opinion as well as the court of law.”
Linda Greenhouse — who was looking unusually stylish, in a black skirt and white jacket with black piping (Chanel?) — jumped in to pose a question of Wolfson. She noted that Bowers v. Hardwick, in which the Court upheld a Georgia statute criminalizing sodomy, came three years later in 1986. She then asked Wolfson: Was Bowers in any way a good thing, as a wake-up call to the gay rights movement?
“I’ll always take a win,” said Wolfson, who worked on Bowers as a young lawyer and was shocked and devastated by the loss. But he agreed that sometimes setbacks can be galvanizing, noting that the AIDS crisis helped drive increased activism in the LGBT community that led to subsequent victories.
The Court’s ruling in Bowers also affected discussion within the legal academy. “Hardwick was an unfortunate decision and caused unmentionable harm,” said Bill Eskridge, who was a law professor at the time. “It was an unmitigated disaster. But it had one good effect: it made homosexuality a topic of discussion in every law school in America.”
Increased public discussion and openness about the LGBT community has played a major role in changing public opinion, which can in turn affect legal rulings. Snyder posed the following question: is the Supreme Court leading or following public opinion in its rulings on same-sex marriage?
It’s “articulating” or “ratifying” public opinion, suggested Greenhouse. By the time the DOMA case reached the Supreme Court, various signs were telling the justices that they could strike down section 3 and remain within mainstream public opinion. Two federal appeals courts had already struck down DOMA, without causing any great public outcry, and Don’t Ask Don’t Tell was gone as well.
Interestingly enough, the plaintiff in the DOMA case, Edith Windsor, did not encounter much enthusiasm within the LGBT legal community when she originally sought counsel to bring her case. Snyder asked the panelists why Windsor, who is now such a beloved figure within the gay community, did not receive a warmer welcome.
According to Wolfson, there was a concern that Edie Windsor’s story and issues — essentially, having to pay more taxes on a second home — would not resonate with the broader public. This turned out to be a major miscalculation, he noted. (I thought to myself: not all Americans love gay people, but lots of Americans hate the estate tax.)
Eskridge expressed some concern about focusing too much on litigation and not enough on the political process. Acknowledging that he expressed criticism of the original court challenge to Proposition 8, he argued that the LGBT community should have tried to reverse Prop 8 at the ballot box in 2012. Even though we now have marriage equality in California, thanks to the Perry litigation, it perhaps would have been better to have won California at the polls.
But Greenhouse reminded the audience of the good that came of the trial before Judge Vaughn Walker in Perry, which was “an enormous event.” First, it showed that there was “no there there” in terms of support for Prop 8. Second, it grabbed the country’s attention, in a very dramatic way — the trial was “a huge teachable moment, in a way that a referendum would not have been.”
Discussion then turned to the consequences of the rulings, including the New York Times op-ed by Alberto Gonzales, former U.S. Attorney General, and David Strange, an immigration lawyer. Gonzales and Strange argued that a 1982 ruling by the Ninth Circuit created some ambiguity regarding the post-Windsor extension of federal immigration benefits to the same-sex foreign spouses of United States citizens.
The panelists were not impressed by the Gonzales/Strange op-ed. Eskridge colorfully dismissed it as a “lavender herring,” noting that (1) the Ninth Circuit’s decision rested primarily on deference to the agency’s interpretation of the statute and (2) the case is no longer good law anyway, having been superseded by subsequent changes to the immigration laws. Quipped Eskridge, “That the New York Times published [the op-ed] is a sign that the Times is veering in the direction of TMZ.”
What can we expect from future Supreme Court rulings on marriage equality? Will the Court someday tackle the issue that it avoided in Perry, namely, whether there is a federal constitutional right to same-sex marriage?
Wolfson predicted that the Court will eventually confront this issue — which is why advocates of same-sex marriage must help create the conditions to encourage the Court to take such a case and to rule in the right way. Supporters of marriage equality must not rest on their laurels or slow down their efforts, because a SCOTUS decision might come sooner than expected — “hopefully within years, not decades.”
After Perry & Windsor: A Conversation about the Supreme Court’s Rulings [LGBT Bar Association of Greater New York]