On March 26 and 27, the Court will hear oral argument in the same-sex marriage cases, Hollingsworth v. Perry (the challenge to California’s Proposition 8) and United States v. Windsor (the challenge to Section 3 of the federal Defense of Marriage Act). The first briefs in the cases will be filed on January 22. In advance of those filings, the blog will be publishing a series of posts by Marty Lederman of the Georgetown University Law Center on the Article III questions the Court has asked the parties to address in the two cases. This is the first post in that series.
Framing the Article III Questions
As Lyle has explained, when it granted certiorari last month in the Defense of Marriage Act (DOMA) and Proposition 8 cases, the Court conspicuously chose to add Article III questions to be briefed and considered in each case, in addition to the merits questions posed by the petitioners.
In the Proposition 8 case, Hollingsworth v. Perry, No. 12-144 — involving whether the Equal Protection Clause of the Fourteenth Amendment prohibits California from retracting state constitutional law that had allowed same-sex couples to marry — the Court has asked the parties to brief and argue “[w]hether petitioners have standing under Article III, § 2 of the Constitution in this case.” The petitioners in question, notably, are not the state officials who were the defendants in the lower court and are subject to the district court’s injunction; instead, they are some of the private, official sponsors of Proposition 8. The district court ruled that they had a right to intervene as parties to defend the suit; and the court of appeals later held that they had standing to appeal the district court’s judgment, even though the state officials who were the original defendants did not do so.
In the case challenging the constitutionality of Section 3 of DOMA under the Due Process Clause of the Fifth Amendment, United States v. Windsor (12-307), the Court has asked the parties to brief and argue two Article III questions: “[w]hether the Executive Branch’s agreement with the court below that DOMA is unconstitutional deprives this Court of jurisdiction to decide this case; and whether the Bipartisan Legal Advisory Group of the United States House of Representatives [BLAG] has Article III standing in this case.” Just as the district court in Perry granted the sponsors of the Proposition 8 initiative a right to intervene, so, too, the district court in Windsor granted BLAG’s motion to intervene to defend the constitutionality of Section 3 of DOMA. The cert. petition the Court has agreed to hear in Windsor, however, was filed by the United States, not BLAG. BLAG subsequently filed its own petition in the case, No. 12-785, which the Court has yet to consider.
Resolution of these Article III questions, by a majority of the Court or by concurring Justices, could potentially prevent a majority of the Court from reaching or resolving the merits in either or both cases. There already has been much speculation, and no doubt there will be much more, about whether some or all of the Justices might be motivated to find a lack of justiciability in either or both cases in order to avoid a holding on the merits — and about whether they would be wise or justified in doing so.
I will leave such speculation to others. Instead, in this series of posts I will offer some very preliminary thoughts on the nature and merits of the Article III questions, mostly with a view to clarifying what the principal arguments are likely to be. That is to say, these posts are designed as a sort of primer on, or user’s guide to, the Article III questions. Of course I can’t be certain in advance how the parties or the Court will address the questions. (Briefing on the Article III questions begins on January 22, when the petitioners in Perry will file their brief on the merits and on standing; the amicus appointed by the Court to argue the Article III questions in Windsor will file her opening brief on January 24.) But I hope these posts will offer SCOTUSblog readers (and, most importantly, Constitutional Law students such as those in my course this semester!) helpful background information that will enable them to follow and assess the arguments as they develop. I would greatly welcome any corrections or other substantive reactions, especially since I am teaching these questions to my students this semester!
In the posts immediately following this one, I’ll identify the likely arguments for and against the Court’s jurisdiction to hear Windsor, and explain why I think it’s likely the Court will conclude it has jurisdiction. Turning to the Court’s second added question, I’ll then summarize the arguments for and against BLAG’s standing to appear as a party in Windsor — an interesting and potentially important question for other cases, but one the Court probably will not have occasion to answer here. Finally, I describe what will might become of current and future cases challenging DOMA Section 3 in the unlikely event the Court holds that it lacks jurisdiction to consider any of the petitions in Windsor.
Following those Windsor posts, I’ll discuss the question of whether the petitioners in Perry — some of the private proponents of Proposition 8 — have Article III standing to appeal the district court’s judgment and bring the case to the Court. It is difficult to predict how the Court (or individual Justices) will resolve that question, which may turn in large part on a questionable interpretation of California state law offered by the California Supreme Court. In my final post, I’ll briefly discuss what might happen to the injunction in the Perry case, and the fate of Proposition 8 more broadly, if the Court were to hold that the petitioners lack Article III standing.
But to begin, in this post I’ll discuss a couple of important preliminary matters that frame the unusual Article III questions in these two cases:
I. Two variations of executive non-defense of statutes
The two cases have an unusual feature in common, one that happens to be the source of the Court’s Article III questions – namely, that in both cases the highest executive branch officials have determined that the plaintiffs’ constitutional challenges to the laws in question are meritorious and accordingly have adopted an “enforce-but-don’t-defend” posture. That is to say, the executive branch officials in each case have decided to continue to enforce the challenged laws (at least in the first instance), but also have declined to defend the constitutionality of those laws in the litigation. In Windsor, the President and the Attorney General have publicly concluded that DOMA Section 3 is unconstitutional. Likewise, in Perry the Governor and Attorney General of California publicly declared their view that Proposition 8 violates the Fourteenth Amendment. (Whereas the California officials merely stated this conclusion in the Perry litigation, DOJ is offering detailed arguments to justify the President’s and AG’s constitutional judgment in Windsor.) Therefore, in both cases, the defendants agree with the plaintiffs that the courts ultimately should enjoin the defendants from enforcing the laws in question.
In another respect, however, the executive officials in the two cases have acted very differently from one another — in a way that might make a big difference for the Article III questions the Court has raised.
In Perry, once the district judge agreed with the California executive officials and enjoined them from enforcing Proposition 8, at least as applied to the two couples who are the plaintiffs in the case, the officials simply agreed to abide by that injunction, and chose not to appeal the district court’s decision. Therefore, the state official defendants did not appear as parties in the court of appeals, and the only thing keeping the case alive there — and the only thing potentially keeping it alive in the Supreme Court — was the fact that the intervenors, the proponents of Proposition 8, chose to appeal (and then to file a cert. petition).
In Windsor, by contrast, although the Department of Justice agreed with the district court’s decision to issue a judgment against the defendant, the United States, requiring it to pay damages to the plaintiff, it then appealed from that judgment on behalf of the United States. And when the United States “won by losing” in the court of appeals, too, DOJ then filed a cert. petition — the petition the Court has granted in Windsor.
Why did DOJ do this? If the President has concluded that DOMA Section 3 is unconstitutional, why didn’t the federal government simply accept the lower court’s judgment, pay the damages award to Windsor, and thereby “prevail” on its view of the Fifth Amendment question — why take the chance that the Supreme Court might disagree? The answer to this question is found in the Attorney General’s letter to Congress: “[T]he President has instructed Executive agencies to continue to comply with Section 3 of DOMA, consistent with the Executive’s obligation to take care that the laws be faithfully executed, unless and until Congress repeals Section 3 or the judicial branch renders a definitive verdict against the law’s constitutionality. This course of action respects the actions of the prior Congress that enacted DOMA, and it recognizes the judiciary as the final arbiter of the constitutional claims raised.” As DOJ further explained to the district court in Windsor:
To fulfill the Attorney General’s commitment to provide Congress a full and fair opportunity to participate in the litigation, the United States will take the procedural steps necessary to enable BLAG to present arguments in support of the constitutionality of Section 3. The United States intends to file appropriate motions, purely as a procedural matter, to ensure that [the courts] can consider arguments on both sides of the constitutional issue and that the [district] Court has jurisdiction to enter judgment on the basis of those arguments. This approach is consistent with what the Department of Justice has done in prior cases in which the Executive Branch has taken the position that an Act of Congress is unconstitutional but announced its intention to enforce or comply with the law pending a final judicial determination of the constitutional issue: the cases proceeded, Congress or the Senate or the House of Representatives filed briefs supporting the constitutionality of the statute, and when the lower courts agreed with the Department of Justice’s position that the statute was unconstitutional, the Department took appropriate steps to invoke the jurisdiction of the Supreme Court in order to provide an opportunity for that Court’s full consideration of the constitutional question. See, e.g., Chadha, 462 U.S at 928, 930-93 (Solicitor General filed an appeal from the Court of Appeals’ decision); United States v. Lovett, 328 U.S. 303, 306-307 (1946) (Solicitor General filed a petition for a writ of certiorari).
This posture is unusual but hardly unprecedented. In the ordinary case, of course, the executive branch defends federal statutes when they are subject to constitutional challenge, even if lawyers in DOJ might think the Court is likely to declare the law invalid. But that is not invariably the case. As I’ve explained elsewhere, there have been several categories of cases over the years, going back at least to the Myers v. United States case in 1926, in which the Department, and the United States, have not defended — and have often challenged — the constitutionality of statutes.
In many such cases of DOJ non-defense over the years, the executive has, as with DOMA, continued to enforce the statute pending final judicial resolution. In 1996 the Department provided a letter to Senator Orrin Hatch identifying many such examples of the “enforce-but-don’t-defend” practice, including the two historical precedents most relevant in Windsor — namely, United States v. Lovett and INS v. Chadha — both of which I’ll discuss in more detail in my next post. (For readers interested in academic debate about this practice, the most comprehensive defense of enforce-but-don’t-defend in cases where enforcement will facilitate judicial review remains Dawn Johnsen’s 2000 article. More recently, Aziz Huq has argued that in some such cases the executive should not enforce the statute in question, even if that means less opportunity for judicial review. See also David Barron’s take on the question from 2000.)
Notably, one of those historical cases of “enforce but don’t defend” not only involved the question of heightened scrutiny under the equal protection component of the Fifth Amendment — a question at the heart of the Windsor case — but also involved now-Chief Justice Roberts, in his previous role as Acting Solicitor General. As I have described elsewhere, the Court’s 1990 case in Metro Broadcasting v. FCC concerned a longstanding FCC policy of awarding licensing preferences to broadcast stations having a certain level of minority ownership or participation. The FCC initiated a review of this policy under the Reagan Administration, in response to which Congress passed three appropriations riders, in 1988-1990, forbidding the FCC from using appropriated funds to examine or change its preference policies. In their signing statements, both President Reagan and President Bush raised constitutional objections to other provisions of the bills in question, but did not object to the minority-preference provisions. In a subsequent lawsuit challenging the preferences — Metro Broadcasting — Acting SG Roberts permitted the FCC to appear in Court through its own attorneys to defend the constitutionality of the preferences and the federal laws requiring them. That argument was certainly a strong one, in light of the view of several Justices in Fullilove v. Klutznick that congressionally authorized affirmative action programs should not be subject to the strict scrutiny that the Court had applied to state and local affirmative action programs.
The FCC Commissioners and General Counsel urged the Department of Justice to likewise defend the statutes on behalf of the United States, emphasizing that “there is a solid foundation in the Supreme Court’s precedents for the government to argue that the FCC’s policies are constitutional.” But, according to the notes of Associate White House Counsel Fred Nelson, Acting Solicitor General Roberts was “[r]eluctant to defend [the] commission’s position.” Accordingly, in the Supreme Court, the United States not only did not defend the federal statutes but in fact urged the Court to declare them unconstitutional. Acting SG Roberts, appearing on behalf of the United States as amicus curiae, argued that insofar as the federal statutes required the FCC to continue its preference policies, they were unconstitutional. The Acting SG’s brief urged the Court to reject the deference to Congress suggested in Fullilove, and to apply strict scrutiny to federal affirmative action — an argument analogous to the one DOJ is making in Windsor in favor of heightened scrutiny for laws discriminating on the basis of sexual orientation.
Metro Broadcasting was an unusual case in that the Acting Solicitor General declined to defend the constitutionality of statutes where they did not implicate the President’s constitutional powers and the President had not publicly indicated any constitutional objection to the provisions. (To the contrary — not only had President Bush signed one of the laws, but he had also appointed three new FCC commissioners who each had expressly supported the diversity preferences in their confirmation hearings.)
By contrast, and as explained in Attorney General Holder’s letter to Congress in Windsor, President Obama has publicly concluded that DOMA Section 3 is unconstitutional. And in cases where, as here, the President himself has publicly declared his considered view that a statute is unconstitutional, DOJ almost invariably does not defend the statute against constitutional attack. (I am aware of only one historical exception to this general rule of practice — Oregon v. Mitchell, described in the 1996 DOJ letter.)
II. The Court’s recent Article III jurisprudence
The Article III questions at issue in Windsor and Perry should also be considered against the backdrop of the Court’s broader Article III jurisprudence. The Court in recent Terms has been unusually attuned to some fundamental and vexing issues of Article III standing that have largely escaped sustained public attention — in cases such as Massachusetts v. EPA; Summers v. Earth Island Institute; Monsanto v. Geertson Seed Farms; American Electric Power Co. v. Connecticut; Arizona Christian School Tuition Org. v. Winn; Camreta v. Greene; and Bond v. United States.
This trend continues in the current Term. Even before the same-sex marriage grants, the Court was considering Article III questions in, for instance, Clapper v. Amnesty International USA, Genesis HealthCare Corp. v. Symczyk, and the recently decided Already, LLC v. Nike.
These are not the sorts of cases that typically make headlines (Massachusetts v. EPA being an obvious exception). But they can be among the most important of the Court’s decisions, since they often determine whether and to what extent the federal judiciary will be open to certain categories of legal challenges, and the scope of the Supreme Court’s own authority to resolve contested legal questions. Therefore it’s hardly surprising that in most (but not all) of these cases the Court has been very closely divided, often (but not always) in ways that track the Justices’ substantive disagreements, for justiciability decisions can be powerful determinants of substantive results over the long run. As Linda Greenhouse recently wrote, “[t]he standing doctrine has for years been a major site of contestation between liberal and conservative judges, between those whose priority is maintaining access to court to the greatest degree possible and those who believe that the constitutional separation of powers makes the courts ill-suited to resolve many of the problems that people try to bring to them.” Linda “suspect[s] there is a profound battle over the meaning of Article III jurisdiction, an issue proving so divisive that the justices haven’t yet permitted it to fully surface.” Whether or not that is true, it is certainly the case that the Justices themselves care a great deal about the broader impact of the Court’s Article III jurisprudence, and therefore it is not safe to assume that its decisions on justiciability in the marriage cases will be driven only by the Justices’ views on the merits of these two particular cases themselves.
These two cases are a bit out of the ordinary when it comes to standing jurisprudence. In the mine run of cases dealing with the question of standing, the issue is whether the plaintiffs — the persons challenging government or private-party conduct — have a sufficient “personal stake” in the outcome to guarantee the type of “concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions” (Baker v. Carr) — what the Court in Massachusetts v. EPA called “the gist of the question of standing.” Moreover — and of particular relevance to the Article III question in Perry – in cases such as FEC v. Akins and Lujan v. Defenders of Wildlife the Court has explained that when a private plaintiff asserts only an “interest in seeing that the law is obeyed,” “claiming only harm to his and every citizen’s interest in proper application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him than it does the public at large,” he “does not state an Article III case or controversy.”
These two same-sex marriage cases, by contrast, do not raise any question of the plaintiffs’ standing — obviously, the individuals who were denied a marriage license in California, and Edith Windsor, who was denied a tax refund, had standing to bring their lawsuits.
But the Court has also held that the party seeking appellate review must itself have standing at the time of the appeal, even if, as here, that party is a defendant in the case, or an intervenor, rather than the plaintiffs. In most cases, that’s an easy test for a defendant to satisfy: if the defendant lost below, and has had a judgment entered against it, it has a personal stake in having that judgment overturned, and thus has standing to appeal.
On rare occasions, though, the Court has held that an appeal may be brought even by a prevailing party below, at least if the litigant retains the necessary personal stake in the appeal. One such unusual case was Camreta, which the Court decided in May 2011. In that case, Camreta was the defendant, an Oregon public official accused of having violated the plaintiff’s Fourth Amendment rights. Camreta prevailed in the lower court on the ground that he had qualified immunity. The losing plaintiff did not appeal, but Camreta, notwithstanding that he had won below, did, because in the course of its opinion the court of appeals had held that his conduct violated the Fourth Amendment, a precedent that might affect his future conduct. The Supreme Court held that Camreta had standing to appeal not so much the judgment of the court of appeals (which was in his favor), but the lower court opinion. At first glance, this would appear to be in tension with the age-old adage of the Court that it “reviews judgments, not statements in opinions.” Writing for an unusual majority of five Justices, however — including the Chief Justice and Justices Scalia, Ginsburg, and Alito — Justice Kagan explained that because Camreta “regularly engages” in the conduct that the court of appeals declared unconstitutional “as part of his job,” he “suffers injury caused by the adverse constitutional ruling,” because “[s]o long as it continues in effect, he must either change the way he performs his duties or risk a meritorious damages action,” and “[o]nly by overturning the ruling on appeal can the official gain clearance to engage in the conduct in the future. He thus can demonstrate, as we demand, injury, causation, and redressability.” (The Court eventually held that the appeal was moot, and then took the unusual step of vacating not the court of appeals’ judgment, but instead only that part of the lower court opinion that had addressed the merits of the constitutional question.)
Justice Kennedy, joined by Justice Thomas, issued a sharp dissent on the standing question, concluding that the result was “an erroneous and unbounded exception to an essential principle of judicial restraint.” Justices Sotomayor and Breyer did not reach the Article III question, but called it “difficult.” Justice Scalia, one of the five Justices in the majority, wrote separately to explain that he joined the Court’s opinion because it “reasonably applies our precedents, strange though they may be.”
Camreta is a fascinating decision that will likely inspire a great deal of interesting academic musing. (For an early account, see this essay by my colleague Gerry Spann.) For present purposes, it suffices to say that Camreta may reflect a willingness on the part of at least some Justices to temper their usually strict Article III jurisprudence to ensure that the Court itself has an opportunity to weigh in on certain important constitutional questions — something to watch for in Perry and in Windsor.
Finally, it is worth noting that Windsor is in a sense the flip side of Camreta. In Camreta, the defendant prevailed below, but was aggrieved by the court of appeals’ reasoning. In Windsor, by contrast, the lower courts agreed with the defendant United States that DOMA Section 3 is unconstitutional, but issued a judgment and injunction against the United States. The U.S. accordingly sought certiorari because it is injured by the lower court judgment and injunction, even though it concurs with the crux of the court’s reasoning — and because it will comply with the injunction only if the Supreme Court rejects the U.S.’s arguments and affirms the court of appeals (or if the Court refuses to reach the merits).
More on Windsor in the next post.
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