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The Dimensions of Law and the Same-Sex Marriage Cases

- December 10, 2012

We are delighted to welcome the following guest post by Tom S. Clark (Emory) and Benjamin E. Lauderdale (LSE).


Last Friday, the Supreme Court agreed to hear two cases involving same-sex marriage. One case, Hollingsworth v. Perry, involves a challenge to California’s Proposition 8, which amended the California State Constitution to define marriage as only between a man and a woman. The question presented is whether Proposition 8 violates the due process clause of the Fourteenth Amendment of the Federal Constitution—that is, whether there is a legitimate state interest in treating gay and lesbian citizens differently for purposes of marriage. The other case, United States v. Windsor, challenges the constitutionality of the Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex marriages; in this case Edith Windsor was denied a tax deduction for estate taxes when her spouse, whom she married in Canada, died. The tax deduction was denied because DOMA prohibits the IRS from recognizing same-sex marriages.

These two cases will be among the most closely-watched cases of the Supreme Court’s term, and may be among the most consequential decisions it makes this year. When arguments are held in March, there will surely be a large crowd outside of the Court, and Court-watchers and interest groups will surely wait in suspense for the decision in late June. Already, speculation has begun to abound about how the Court will decide these cases, and how individual justices will vote. Much attention is being paid in particular to Justice Kennedy, who is widely seen as the pivotal member of the Court.

There are two factors which are particularly important for understanding the dynamics that will drive the justices’ decisions in these cases. First, the justices have much more nuanced views across different legal issues than the political science literature has traditionally recognized. Second, the justices are indeed sensitive to the dynamics of public opinion on important issues in society. The Court’s responsiveness to public opinion is something that political scientists have long studied, and one of us has written on here, as well as previously on the Monkey Cage. That public opinion on same-sex marriage has moved significantly in favor of supporting marriage equality is a fact that has been documented by the popular press as well as by political scientists (gated). In this post, we focus on the justices’ preferences across areas of the law and leave the issue of the effects of public opinion for later.

We have been working on a series of papers that examine how the justices’ preferences vary systematically across areas of the law. In two of these papers, “The Supreme Court’s Many Median Justices,” (American Political Science Review, November 2012) and “Scaling Politically Meaningful Dimensions Using Texts and Votes” (working paper) we find that the justices rank orderings in cases vary considerably across areas of the law and that as a consequence the identity of the pivotal median justice can vary from case-to-case. (The former paper was discussed earlier this year here on the Monkey Cage) The implication of our findings in these papers is that how these cases are cast before the Court can shape in a consequential way how each justice votes and we may be able to predict that from the current record. In Hollingsworth, the Supreme Court has asked the litigants to argue whether there is a due process violation. We find in one paper that Kennedy is marginally more liberal on issues concerning due process than he is on issues concerning privacy, civil rights, and federalism. In fact, in perhaps one of the most legally-relevant cases, Lawrence v. Texas, Justice Kennedy wrote the majority opinion holding Texas’ criminalization of sodomy unconstitutional in part on the basis of the Fourteenth Amendment’s Due Process Clause. To the extent that this case is argued on due process grounds, supporters of same-sex marriage may have reason to hope that Kennedy will be on their side. In Windsor, the substantive issue is whether DOMA unconstitutionally discriminates on the basis of sexual orientation. here, again, the due process argument will likely be a central part of the Court’s decision.

However, in both cases, there is a second issue that the Supreme Court has asked the litigants to answer, and that is whether the Court can even hear the case (in legalese, whether the litigants have standing). In Hollingsworth, there has been a long-standing question concerning whether the supporters of Proposition 8 can sue in court. The California government has refused to defend Proposition 8 in court, and so a group of citizens has taken action in court. The California courts found that voters who support the ballot initiative have a legal interest in the case and can therefore sue in court. In Windsor, the problem is whether President Obama’s agreement with the lower court decision to invalidate DOMA means that the group appealing the case has a legal interest and can therefore rightly bring the case to the Court. The issue here is that because the Administration does not want to appeal the case, the appeal has been brought by a group known as the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG). The Supreme Court may be able to avoid deciding the case, leaving the lower court’s decision that DOMA is unconstitutional, on the grounds that BLAG is not a party to the case and therefore cannot be the one to bring the case to the Court. In other words, the Supreme Court may be trying to “dodge” the case. In our APSR paper, we find that Kennedy is relatively more liberal on issues relating to standing than he is on issues involving civil rights, privacy and federalism, thus suggesting that he may be willing to exercise judicial power in this case. Indeed, it is likely that the Court’s request that the litigants answer this question may be an effort by the Court’s more conservative members to raise this issue an an effort to avoid answering the due process question, on which they may be more likely to lose.

We have focused on Kennedy thus far, but one of the arguments we make in our papers is that the identify of the median justice does vary across areas of law. The decision in National Federation of Independent Business v. Sebelius upholding health care reform turned on Justice Roberts’ vote, not Kennedy’s. We think a similar surprise is not likely in Hollingsworth and Windsor for two reasons. While Justice Roberts has not been on the court long enough to provide much information about how his views vary by issue, the fact that Kennedy was to the left of O’Connor in Lawrence v. Texas, which was decided on due process grounds, indicates that these issues are likely to find Kennedy leaning left. Thus, the implication of our findings, as applied to the Hollingsworth and Windsor cases, is that if the cases are successfully framed as due process issues, supporters of same-sex marriage will be in a better position to win than if they are framed in terms of civil rights and federalism. While we find that the identity of the median justice varies from case-to-case, Kennedy will likely be in the center on all of the issues in these two cases. The question really is, where in the center is he. We find he’s left-center on due process issues and right-center on federalism and civil rights. Given the way these cases have been framed by the lower courts, there is reason for same-sex marriage supporters to be optimistic.