Julie Greenberg, Professor of Law, Thomas Jefferson School of Law
Related Story: San Diegans Wait For Prop 8, DOMA Rulings
CAVANAUGH: The council down is underway for U.S. Supreme Court watchers. The Court session ends at the end of June, and on any of the remaining Mondays of this month, the Court is expected to rule on its two major cases: California's Proposition 8, and the federal defense of marriage act. Speculation on what the Court will decide is reaching a legal boiling point, and it's not only because of the high-stakes issue involved. It's also because of the nuance of legal technicalities surrounding the decisions. Earlier today, I spoke with Julie Greenberg, professor of law at the Thomas Jefferson school of law.
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CAVANAUGH: Before we get into the number of possible outcomes the Court could issue, do we get any advance word on when these rulings may be released?
GREENBERG: We may or we may not. They may tell us next Monday that they're going to be releasing it.
CAVANAUGH: And that's because the Court just really does not go along with the media cycles?
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GREENBERG: I think we will have a sense of what's going to happen. So you may have advanced word, but it's not going to be weeks in advance.
CAVANAUGH: Okay. So let's get into it then. California's prop 8, the voter-approved measure that banned same-sex marriage was struck down by a federal court judge, Vaughn Walker, in 2010. From that point, how did prop 8 end up at the U.S. Supreme Court?
GREENBERG: What happened is after judge walker struck it down, the proponents of prop 8 went to the 9th circuit and said we disagree with judge walker. We'd like you to review the decision. The 9th circuit did review the decision, and they agreed that prop 8 was unconstitutional. They did it for different reasons, but they agreed with the end result. The proponents of prop 8 were unhappy with that result. So they went to the Supreme Court and asked the Supreme Court to review the 9th circuit decision, and that's how -- and the Supreme Court said, yes, we will review it. And that's how we got to the Supreme Court today.
CAVANAUGH: Now, the U.S. Supreme Court decides issues that have a constitutional question in them. I'm wondering, what is the question of constitutional merit that the U.S. Supreme Court is looking at concerning prop 8?
GREENBERG: So the people who were opposed to prop 8 who won at the lower court argue that prop 8 is unconstitutional for two reasons. First, there's a fundamental right to marry in the constitution, and it denies the fundamental right to marry. Second, they made an equal protection argument, which is that same-sex couples are not being treated equally to opposite-sex couple, and that is a denial of their right to equal protection. So those are the two constitutional arguments the Supreme Court will be considering.
CAVANAUGH: Now, how likely do you think it is that the justices will decide Proposition 8 on the merits, on the issues that you just mentioned?
GREENBERG: You could ask 20 different experts and get a number of different opinions. This is one person's opinion. After reviewing all of the oral arguments, I think there's a very strong possibility they will say we do not want to get to the merits of this decision. And they will dismiss it, and they have two ways that they can dismiss the case. They can say we made a mistake. We should not have granted cert, we should not have agreed to hear the case. That's called a dig. Or two, if they get past that issue, they could say we're not going to decide because the proponents of prop 8 are not the proper people to be bringing the case, and that's called no standing to bring the case.
CAVANAUGH: I want to get into those issues more deeply with you. But let's stay with the idea that maybe the Court will decide this on the merits of the case. If it does, which justices do you consider the key votes?
GREENBERG: That's difficult to say in this case. Generally, I would say Kennedy is the key vote. We have four relatively conservative justices, four liberal justices, and Kennedy is the swing vote, and he's often the swing vote on issues related to gay and lesbian rights. The reason it's more complicated in this case, I don't think even the liberal justices are ready to say that the entire country has to accept same-sex marriage. So I don't think that is a possibility at all. So then we're down to two possibilities. Either they decide prop 8 is valid and California's same-sex couples cannot marry, or they decide California's same-sex couples can marry, but they're going to limit it only to the unique circumstances of California. There I do think Kennedy is a critical vote, I think Roberts may be an important vote, but Kennedy is the key vote on that issue.
CAVANAUGH: What was it about the oral arguments? People who watched the Court closely said there was something about what the justices were saying during the arguments that seemed to indicate that they were not ready to decide this matter on its legal merit, on its constitutional merits.
GREENBERG: Two reasons. One, the court specifically asked the parties to address the standing issue. So they specifically said we want to have some more information on this. Two, during the desire time that they could ask questions, the Court can control what topics they're asking about, and they spent a lot of time on standing as compared to the constitutional arguments. So that made all the of court-watchers say oh, they're really focusing on the standing issue, maybe that's the way they're going to resolve it.
CAVANAUGH: And the reason it's so big for Proposition 8, there's also a standing issue for DOMA, but is because in general, if a law in California was going to be defended before the U.S. Supreme Court, it would be the attorney general state officials that would bring that case. That's not the case in this case.
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GREENBERG: And that's why it's so muddy, and that's why so it's difficult to predict. Normally, the attorney general and the governor say don't tell us, courts, our laws are unconstitutional. So they they continue to defend the law. So both the attorney general and the governor said we agree with judge walker. We think this is an unconstitutional law. We are not going to appeal the decision. So then the prop 8 proponents are trying to step in in the shoes of the government. And the big question is can they? Do they have the right to act in a way that only the government should be acting?
CAVANAUGH: Now, if prop 8 is sent back to California courts because of this standing issue, because the proponents of prop 8 are determined not to have proper standing to bring this case to begin with, what happens?
GREENBERG: Then again, you have some debate on it. But typically it's not going to be sent back to the Courts to redecide it. If there's no standing, it means that the proponents of prop 8 couldn't have brought the case to the Supreme Court. And they couldn't have brought the case to the 9th circuit. Therefore we go back to judge walker's ruling, which is stop enforcing prop 8. Now, the proponents of prop 8 are making an argument that if we never had standing, then judge walker's ruling isn't valid either. I don't think that's a persuasive argument. I think that will end the litigation, and marriages will start again in California.
CAVANAUGH: There is also an argument though that because judge walker's ruling was limited to only a couple of county, right, that perhaps it doesn't apply to all of California. Could governor brown step in and do something that that that ruling would apply to the entire state?
GREENBERG: Well, judge walker's ruling actually did apply to the entire state. He said I'm issuing an injunction against prop 8 being enforced. What the proponents of prop 8 are arguing, which is somewhat of a valid argument, is there were only two couples and two counties before judge walker. There does he really have the power over the entire state? But what governor brown has already indicated is if judge walker's ruling goes into effect, he will tell clerks throughout the state start issuing licenses.
CAVANAUGH: Now, what happens, either scenario, if this is sent back because the Supreme Court decides it should never have taken the case in the first place? What you referred to as dig.
GREENBERG: That stands for dismiss improperly granted, dig. So if they do a dig, then we go back to the 9th circuit. That means they shouldn't have granted the hearing. That means the 9th circuit opinion is in effect. And although the 9th circuit decided it for different reasons than judge walker, they also said prop 8 is unconstitutional. So we're back to again same-sex marriages beginning in California.
CAVANAUGH: Okay. All right. And of course there is that option, that possibility that the U.S. Supreme Court might uphold Proposition 8. We haven't talked too much about that. All the other scenarios have something to do with either the Court denying it or upholding it at least in a limited fashion.
GREENBERG: So there is that possibility. I think the four conservative justices, if they get to the merits would uphold prop 8. I think that the four liberal justices and Kennedy would have a real problem with that because given the way -- we can see where public opinion polls are going, where legislators are going. We are moving more and more toward a country that accepts same-sex marriage. It's not going to be -- if you did a public opinion, it wouldn't be tomorrow in all states. But it will be eventually down the road. And I think the liberal justices and Kennedy would be very concerned that ten years, 20 years down the road, they're reversed, and people look at their opinion like they look at the opinions on interracial marriage bans. And they don't want to be -- especially I don't think Kennedy will want to have that label put on him, that he was the person who allowed this ban to continue when society thinks down the road, why did they ever ban it in the first place?
CAVANAUGH: Let's move onto the second big about same-sex marriage case, the defense of marriage act or DOMA. Isn't there also a question of standing here?
GREENBERG: Let me give you a brief background. DOMA is a federal statute passed by Congress that says even if the state recognizes your same-sex marriage, for federal purposes, we refuse to recognize it. So you can't file a joint tax return, you can't get Social Security benefits. The more than 1,000 rights that go with the label "marriage." The Court also asked them to brief standing there. And there's two issues on standing there. One is very similar to prop 8. The proponents of DOMA is a group called BLAG, which is just a small committee in the house, the bipartisan legal advisory group. When President Obama said I think DOMA is unconstitutional, I'm going to go to court and argue that it's unconstitutional, BLAG said, well, we need somebody arguing that it is constitutional. We're going to be that group. So they have been going through each level of the Courts saying it's unconstitutional. But the question just like the prop 8 proponents, is does a house committee consisting of five members, the vote was 3-2 have the right to represent the law as opposed to the full Senate, as opposed to the full house? As opposed to not being able to represent it at all? So there's an issue of whether they have standing as well.
CAVANAUGH: And yet the legal observers seem to think that DOMA has more -- is more likely to be decided on the merits of the case than Proposition 8. Why is that?
GREENBERG: I agree with that conclusion. One of the differences, and this is getting hyper technical, between prop 8 and DOMA, is Obama stayed in the litigation. So governor brown got out of the litigation after the trial court. President Obama stayed in the litigation. He brought the appeal to the 2nd circuit. He also petitioned the Supreme Court to hear the case because he said this case needs to be heard. So the government, the executive branch stayed in the case on DOMA. Whereas on prop 8, they got out of the case. So the Court could decide to hear the case because the executive branch of the government, the proper party, is before the Court.
CAVANAUGH: What happens if the Court strikes down DOMA? How does that affect same-sex couples? Does it affect their right to marry?
GREENBERG: DOMA has no effect on the right to marry. DOMA doesn't control whether a state says you're legally married or not. All that DOMA says is we will respect the state that says you're legally married. And we will give you the federal rights that go along with marriage. So what would happen is in the dozen states in which same-sex marriage is legal, those couples whoR residents of those states and legally married in those states, can go to the federal government and get all the federal rights. If you're a same-sex couple in a state that doesn't recognize same-sex marriage, which is still the majority of the states, you still don't get federal rights.
CAVANAUGH: Right. Because your state does not allow same-sex marriage.
GREENBERG: Because you're not a married couple within your state.
CAVANAUGH: Now, I know we talked about whether or not the Court is going to indicate when these rulings or their decisions of some sort are going to come down. Do you think the Supreme Court will issue both prop 8 and DOMA rulings statement?
GREENBERG: I think they will. I don't see a reason not to do it. And there are a lot of good reasons to do it. They may end up being totally separate decisions. But if they do get to the merits in DOMA, that may affect how the prop 8-case is handled. And it's getting near the end of the term. We're already into June. They have to issue these rulings by the end of the month. So they're going to be issuing a lot of very important rulings beyond the same-sex marriage case rulings. I cannot see any logical reason to issue them on different days.
CAVANAUGH: If the Supreme Court refuses to either uphold or eliminate Proposition 8, do you see -- and it comes back to California, do you see anymore legal wrangling about this? Are there issues that could still be brought to uphold Proposition 8 and stop same-sex marriage in California?
GREENBERG: Here's one scenario. Let's assume the governor says, okay, clerks, everybody has to issue marriage licenses. There could be a clerk in a county that wasn't before judge walker who says I refuse to issue the marriage license. And then a couple who seeks to marry, the easy thing and they could just go to another county.
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GREENBERG: But if they want to continue the litigation, then they could sue that county clerk, saying you must issue me a marriage license. You're denying me my constitutional right. Or a clerk who is forced to issue a license could try to go to court and say you can't make me issue this marriage license. It's a possibility. I can't really say whether the prop 8 proponents would want to continue that.
CAVANAUGH: This speculation about prop 8 has turned into a legal cottage industry, hasn't it?
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GREENBERG: Oh, law professors and legal experts, this is a full-time job now! It's a very complicated case with all -- complicated issues of constitutionality, issues of standing. It is a huge cottage industry.
CAVANAUGH: You've broken it down so wonderfully for us all. Thank you so much.
GREENBERG: It's been my pleasure. Thank you for having me.