All of the amicus briefs have now been filed in Hollingsworth v. Perry, the California same-sex marriage case. In light of the parties’ opening briefs and a preliminary review of some of those amicus briefs, including the landmark filing by the United States (see Lyle’s post), and the briefs of California and of thirteen other states (see my post here), it is more evident than ever that there are (at least) five possible outcomes in the case — a rich menu of choices for the Court. (When I refer to the “Court” here, I mean those Justices whose votes will be decisive. They might comprise a majority; but it’s also possible that there will be a fractured Court in which a plurality opinion, or even an opinion of one Justice, will be “controlling” in fact.)

[Slightly updated.]

In summary, and as explained below, these are the five options offered to the Court:

(i) The Court could uphold the constitutionality of Proposition 8 — that is, hold that states may limit the civil institution of marriage to opposite-sex couples.

(ii) The Court could conclude that the Fourteenth Amendment categorically prohibits states from discriminating against same-sex couples in the conferral of marriage licenses–the so-called “fifty-state holding” (although it would have a practical impact only on the forty-one states that continue to prohibit same-sex marriage).

(iii) Without reaching the question whether a state could justify denying to same-sex couples substantial benefits and privileges that it offers to opposite-sex couples, the Court could conclude that once a state has offered same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, there is no legitimate justification for denying those couples the status of “marriage” itself, and that therefore it is fair to conclude that such a denial is designed only to stigmatize, or to deny respect, on the basis of sexual orientation, which the Constitution forbids. This is the so-called “eight-state solution” suggested by the United States today, which would directly affect only those states (California, Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) that already treat same-sex couples the same as opposite-sex couples in virtually all ways but one.

(iv) A California-only holding: The Court could hold, as did the court of appeals (see my explanation last year), that where a state has afforded same-sex couples all or virtually all of the incidents of marriage that it offers to similarly situated opposite-sex couples, and where that state has at one point allowed those same-sex couples the right to be married — a set of conditions that presently describes only the state of California — there is no constitutionally adequate justification for withdrawing that right from those same-sex couples. Such a holding would not require the Court to decide whether a state may more broadly discriminate in favor of opposite-sex couples, or even whether a state may in the first instance offer same-sex couples all of the same rights, privileges, etc., that opposite-sex couples enjoy, except for the status of marriage.

(v) The Court could dismiss the appeal on standing grounds, without (a majority) resolving the merits.

Option No. 1: The Constitution permits states to limit marriage only to opposite-sex couples.

This is fairly self-explanatory. The Court might rule, as the defenders of Proposition 8 urge, that states can choose to confer the rights, privileges, and responsibilities of marriage, and the status of marriage itself, only on opposite-sex couples.

In theory, the Court might issue such a holding even after concluding that discrimination against gays and lesbians is subject to heightened scrutiny. The Proposition 8 defenders nominally defend that outcome on page 28 of their brief (because the “natural capacity to create children . . . as a matter of indisputable biological fact is limited to sexual relationships between a man and a woman . . . the traditional definition of marriage satisfies the Equal Protection Clause under any standard of review, for even when heightened scrutiny applies, ‘[t]he Constitution requires that [a State] treat similarly situated persons similarly, not that it engage in gestures of superficial equality,’ Rostker, 453 U.S. at 79″); but it’s a half-hearted effort, and I don’t know of any close observers who think that’s a likely resolution.

Accordingly, the Court will likely issue such a ruling if and only it also concludes that such discrimination on the basis of sexual orientation is generally subject to rational-basis review. (Such a holding would not necessarily mean that the Court would also uphold DOMA Section 3 in the Windsor case. Windsor herself has argued that Section 3 does not pass muster even on rational-basis review (see pages 32-62 of her brief), and the United States has argued (see pp. 52-53 of its brief) that Section 3 at a minimum does not pass muster under Justice O’Connor’s conception (in Lawrence) of the “more searching form of rational basis review” the Court has applied in cases such as Romer, Cleburne, and Moreno.)

Option No. 2: Categorically prohibit the denial of same-sex marriage.

This, too, is easy to understand: The Court might agree with the challengers of Proposition 8 that the Fourteenth Amendment does not permit a state to limit the status and institution of civil marriage only to opposite-sex couples, full stop — a “fifty-state” holding in support of same-sex marriage.

The Court could explain such a holding in at least two ways: It might do what it did in Romer, and hold that this particular form of discrimination against gays and lesbians does not satisfy even rational-basis review (saving for another day the broader question of the applicable level of scrutiny for sexual-orientation discrimination more broadly). (The bulk of the brief for the City and County of San Francisco is devoted to this argument.)

Or it might conclude that such discrimination is generally subject to heightened scrutiny, and then decide that denying marriage to same-sex couples cannot satisfy that more onerous burden.

In Part II of their brief, the Proposition 8 challengers also urge a third rationale: Relying upon the Court’s due process holdings about marriage in Loving v. Virginia and Turner v. Safley, they argue that the Due Process Clause guarantees persons the fundamental right to marry the “partner of one’s choice,” at least absent a compelling reason for the state to limit such choices. I think it’s relatively unlikely the Court would rule for respondents on this ground, rather than on the basis of the equal protection argument; but the challengers’ counsel apparently have concluded that it is a potentially fruitful alternative argument that might appeal to some Justices. See also the amicus brief for 37 family law and constitutional law professors, stressing that the state cannot deny a class of persons the right to marry absent a compelling purpose.

Option No. 3: The “Eight-State” Solution.

The Court could hold, as the United States argues, that once a state has done what California did here — namely, provide by law that same-sex “domestic partners” will have “the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law * * * as are granted to and imposed upon spouses,” Cal. Fam. Code § 297.5(a) — and that seven other states (Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island) likewise have done, there is no legitimate justification for denying those couples the status of “marriage” itself, and that therefore it is fair to conclude that such a conferral of second-class status must be designed merely to stigmatize some couples on the basis of sexual orientation, something the Constitution forbids. As the San Francisco brief puts the point:

Because Proposition 8 operates only on the status and honor accorded to same-sex couples’ relationships, it is a “status-based enactment.” Romer, 517 U.S. at 635. It classifies these couples “not to further a proper legislative end” but only to brand them as unequal. Ibid. Whatever differences Petitioners or their amici claim exist between same-sex couples and opposite-sex couples as a justification for this differential treatment – capacity for bearing accidental children, parenting ability, permanence of commitment – have already been disavowed by California as relevant to its legislative ends. Because California recognizes same-sex couples as identical to opposite sex couples with respect to the legal incidents of marriage and parenting, it can claim no rational justification to exclude them from the honor and status of marriage.

In support of this holding, the Court could point to several other areas of constitutional law (e.g., free exercise law, free speech law) in which a state law is deemed invalid because the state’s exceptions to the law have created a degree of underinclusiveness that undermines whatever interests the state might arguably have relied upon to justify the law. See the United States brief at 22-25.

As I noted yesterday, in a rather remarkable development, four of the eight states that provide same-sex couples with virtually all incidents of marriage — Delaware, Illinois and Oregon, in addition to California itself — have filed amicus briefs urging the Court to affirm the judgment of the court of appeals declaring that Proposition 8 is invalid, and making an argument that would, if accepted, appear to seal the fate of their own laws, as well.

The eight-state holding would permit the Court to avoid for now any decision on whether some other states might have a sufficient justification for denying same-sex couples substantial benefits and privileges that they offer to opposite-sex couples. As Lyle notes, such a holding would of course make it much more difficult for the remaining 33 states to sustain their marriage laws against constitutional challenge. But the ultimate fate of such statutes would depend on future litigation and/or on political developments. That is to say, the Court would cast a shadow over the laws of the other thirty-three states, without resolving just yet whether they are constitutional.

Option No. 4: A California-specific holding.

Finally, as the City and County of San Francisco suggest at pages 36-40 of their brief, the Court could simply affirm on the rationale adopted by the court of appeals — namely, that where a state has both afforded same-sex couples all or virtually all of the incidents of marriage that similarly situated opposite-sex couples enjoy, and has at one point allowed those same-sex couples the right to be married, there is no constitutionally adequate justification for withdrawing that right to marriage from those couples. The Court could reason, as did the court of appeals, that even assuming arguendo there is a state interest that might theoretically justify the decision not to extend marriage to same-sex couples in the first instance (a question the Court need not decide), that is plainly not a constitutionally sufficient basis for withdrawal of the right to marriage from gay couples. See also the Brief for California as amicus at 24-28 and, especially, at 34-35, the LAMBDA LDF/GLAD brief at 5-9, and the brief of the National Center for Lesbian Rights.

The Proposition 8 defenders cite the Court’s 1974 decision in Johnson v. Robison for the proposition that when the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, limiting the beneficiaries of a statute to the former category is not necessarily a function of invidious discrimination. But as the court of appeals explained, it is not necessary to decide whether “California would be justified in not extending the designation of ‘marriage’ to same-sex couples; [because] that is not what Proposition 8 did.” Whereas Robison described a state decision not to include in a legislative scheme a group that is unnecessary to the purposes of that scheme, “Proposition 8 subtracted a disfavored group from a scheme of which it already was a part.”

Option No. 5: No standing to appeal.

Finally, the Court might dismiss the petition on standing grounds (or, in any event, the controlling opinion might only address the question of standing), in which case there would not be a holding on the merits. The Court itself reached out and asked the parties to brief the question of whether the petitioners — four of the five sponsors who worked to put Proposition 8 on the California ballot — have Article III standing to appeal. Interestingly, however, the parties themselves haven’t done much with that threshold question.

The Proposition 8 defenders themselves devote only five paragraphs to standing in their opening brief. They do not argue that they have any standing in their personal capacities — that is, they don’t claim that the lower courts’ judgments caused them to suffer any unique injury by virtue of their sponsorship that the other voters or citizens of California have not suffered. Instead, they rely solely on the standing theory the court of appeals adopted — namely, that the state of California itself has standing to sue to defend its law, and California law assigns (or delegates) to the proponents of an initiative measure the authority “to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.” This theory of standing also finds support in Part I of the amicus brief of the Center for Constitutional Jurisprudence, and in the amicus brief of the Pacific Legal Foundation.

I earlier devoted two long posts to the question of whether California’s purported “assignment” of authority to the Proposition 8 sponsors to represent California’s own interest in law enforcement is sufficient to give those sponsors Article III standing that they otherwise would not have. I explained that the question is a novel one that the Court’s precedents do not directly address, let alone resolve, and concluded that its resolution “is very much up for grabs.”

Somewhat surprisingly to me, then, the private Proposition 8 challengers (the two couples who successfully argued in the courts below that the Fourteenth Amendment entitles them to California marriage licenses) have devoted only three paragraphs of their brief to the standing question — even though, as I explained previously, a victory on standing grounds would preserve the injunction they received from the district court, a judgment that would, at a minimum, entitle them to be married under California law. Stranger still, the challengers’ short standing discussion does not even address the rationale on which the court of appeals relied to find that the Proposition 8 sponsors had standing to appeal — i.e., that the sponsors have state law authority to represent California’s interests: The only oblique reference to that rationale in the challengers’ brief is the single, unadorned sentence that “[p]roponents, who are not public officials, do not have a close relationship with the State like the state legislators did in Karcher v. May, 484 U.S. 72, 81-82 (1987).” (Tom speculates on the challengers’ strategy with respect to standing — and muses on how the Court might treat the issue at oral argument — here.)

By contrast, the City and County of San Francisco, who oppose the constitutionality of Proposition 8, have treated the standing argument more seriously, devoting four pages to it (pp. 11-15) in their brief. The State of California itself, appearing as an amicus, argues at length that the Proposition 8 challengers do not have Article III standing to represent California’s interests in federal court, notwithstanding the ruling of the California Supreme Court that California law assigns such a function to those sponsors to represent California’s interests as a matter of state law. And the argument receives even more extensive treatment in an amicus brief filed on behalf of Professor Walter Dellinger. It is also the primary topic of the brief filed by Equality California, and the brief filed by the Columbia Law School Sexuality & Gender Law Clinic.

Two further notes about the option of dismissing the petition on standing grounds, and what it would mean for the future of same-sex marriage:

First, even if the controlling opinion of one or more Justices were to rest on this ground, other Justices might reach the merits, and thereby offer us (and lower courts) some indication of where at least part of the Court stands on the substantive Fourteenth Amendment question.

Second, as I explained earlier, if the Court dismisses the petition for absence of standing, the court of appeals’ decision likewise would be vacated, but the district court’s judgment would be preserved. The Proposition 8 defenders suggest (at the top of page 18 of their brief) that perhaps the district court judgment, too, should be vacated on “prudential” grounds, but they don’t make much of an argument to that effect.

The parties more vigorously contest, however, the proper scope of the district court’s injunction. I earlier argued that it is not clear from the face of the injunction whether Judge Walker intended it to apply only to the defendants’ treatment of the two plaintiff couples, or whether Judge Walker instead intended to prohibit the defendants from denying marriage licenses to any and all same-sex couples in California. The parties, however, all appear to agree that Judge Walker’s injunction is best construed to also guarantee non-party same-sex couples the right to receive California marriage licenses.

I further suggested that if the injunction is so construed, Judge Walker exceeded his remedial authority, because district court judges generally do not have the power to issue injunctions that protect persons other than the parties before them, absent a class action or a case in which a broader injunction is necessary to ensure that the plaintiffs receive complete relief. The Proposition 8 defenders agree with me about that remedial issue (see p.18 of their brief). The Proposition 8 challengers disagree, as do the City and County of San Francisco, who argue at page 19 of their brief that the two same-sex plaintiff couples themselves would be harmed if the injunction were limited to their own licenses because California’s continued denial of marriage to other same-sex couples would have a “stigmatizing” effect even on married couples such as the plaintiffs by “marking them as second-class citizens.”

More importantly, even if it were the case that Judge Walker lacked the authority to issue an injunction beyond the two plaintiff couples, both the private-party challengers (p. 18 of their brief) and the San Francisco respondents (p.19 of their brief) argue that because no party with standing appealed to challenge the scope of that injunction, the Court need not and should not address it. (The San Francisco brief goes further, arguing that the Supreme Court “has no jurisdiction to consider [petitioners’] objections to the scope of the district court’s injunction.”) This somewhat arcane issue — whether the Court can and should address the scope of Judge Walker’s injunction in the event it dismisses the petition on standing grounds — is an issue to watch for in the Proposition 8 defenders’ reply brief (to be filed on March 19) and at oral argument on March 26.

Recommended Citation: Marty Lederman, The Court’s five options in the California marriage case, SCOTUSblog (Mar. 1, 2013, 11:11 AM), https://www.scotusblog.com/2013/03/the-courts-five-options-in-the-california-marriage-case/