Equal Protection
Equal Protection
Obama administration enters Hollingsworth, Windsor discussions
The moment has arrived:
• The United States will address the following question presented by this case: whether Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. (Verrilli et al., Hollingsworth v. Perry)
• Whether Section 3 of DOMA violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their state. (Verrilli et al., U.S. v. Windsor)
The Obama administration has engaged the marriage equality issues before the Supreme Court with what it hopes is a one-two knockout punch against heterosupremacist traditionalism. Taking up the constitutional guarantees of equality found in Amendments V (federal) and (XIV states), Solicitor General Donald Verrilli and his team pick apart the traditionalist arguments before the Court in two
amicus briefs.
In both questions, the administration comes down on the side of marriage equality, arguing in
Hollingsworth that Proposition 8, either as described by its proponents or examined from a practical perspective, fails the appropriate scrutiny to withstand constitutional testing. That is, once one strips away the political rhetoric as the chaff it is, the remaining realities simply fail constitutional scrutiny; the brief even charges that California undermines its own arguments by its attempt to establish a separate but not-quite equal category for same sex unions.
THe
Windsor brief is a straightforward, functional document with, if you'll pardon the metaphor, a striking subtext; it is also used as a well-handled truncheon to bludgeon House Republicans, who have used the aptly misnamed Bipartisan Legal Advisory Group (aptly known as BLAG) to pursue an elderly woman's inheritance. That is, House Republicans have spent several million dollars in hopes that the government should keep $363,053 paid in estate taxes that Edith Windsor only owes because DoMA prevents the government from recognizing her marriage.
The basic argument:
Section 3 of DOMA violates the fundamental constitutional guarantee of equal protection. The law denies to tens of thousands of same-sex couples who are legally married under state law an array of important federal benefits that are available to legally married opposite-sex couples. Because this discrimination cannot be justified as substantially furthering any important governmental interest, Section 3 is unconstitutional.
The expanded argument comes together in three parts, first establishing the need for heightened scrutiny. This is the weak point of both briefs insofar as Justice Scalia can be reasonably expected to disagree regardless of the actual argument. How much support he can muster toward this question will have tremendous influence on both cases. In
Windsor, the administration brief argues the problems of Section 3 in the context of BLAG's advocacy of DoMA. As brawls go, this one is a bit disgraceful; it's not nice to beat up people who are that much weaker than you, and the sheer magnitude of the White House's thrashing of House Republicans is sufficient to make one forget momentarily that BLAG is the bully that picked this fight. If five justices accept the need for heightened scrutiny, DoMA is over. Can Saint Antonin muster the necessary forces to ride through the fray and rescue this whoring witch of a law dressed up as a blushing maiden of threatened virtue?
With
Hollingsworth, the scrutiny question exists; if Scalia thinks he can pounce, he will. While there are other avenues for avoiding the issues, such as leaving the question to the states, it is hard to imagine the Court would bother hearing
Hollingsworth at all if these were still open. The cynic might suggest conservatives wanted
Hollingsworth in order to consolidate the cases and use state sovereignty as a lever to protect DoMA in general, but that is an extraneously complex theory that can only be justified in the twin presumptions that Scalia and company are so cyncial while the Court's more liberal wing is so naïve.
This is the thriller. Everyone is in—citizens, states, and all three branches of the federal government. On paper, at least, this looks like no contest whatsoever; DoMA should be knocked out without question. But oral arguments are not slated until March 26, when the fighters come head to head in the nation's most hallowed juristic arena. We cannot expect the underdog to have a glass jaw, and his right glove will be packed with a ton of Scalia.
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Notes:
Verrilli Jr., Donald B., et al. "Brief for the United States as Amicus Curiae Supporting Respondents". Hollingsworth v. Perry. February, 2013. SBlog.S3.amazonaws.com. March 1, 2013. http://sblog.s3.amazonaws.com/wp-content/uploads/2013/02/12-144tsacUnitedStates.pdf
—————. "Brief for the United States on the Merits Question". United States v. Windsor. February, 2013. SBlog.S3.amazonaws.com. March 1, 2013. http://sblog.s3.amazonaws.com/wp-content/uploads/2013/02/US-merits-brief-Windsor-2-22-12.pdf