What do Tauro's decisions actually mean in real terms?
July 11, 2010 2:50 PM   Subscribe

Conlawfilter: What are the possible ultimate outcomes of the Gill and HHS rulings that just got handed down, and what are your estimates of their respective likelihoods?

Asked on the blue in the appropriate thread, but didn't get a response, so figured I'd go ahead and use a question on it.

I don't really understand what can actually happen as a result of the DOMA related rulings that just got handed down in MA. I understand that DoJ will certainly appeal to the First Circuit Court: What happens then? As Gill is a summary judgement, does that just mean that if they overturn it it goes back for a real trial? How likely is the SCOTUS to grant cert if the plaintiffs appeal a ruling against them at the circuit level? How far out of the mainstream is the reasoning in those opinions? How damaging to the "DOMA is unconstitutional" project would a contrary SCOTUS ruling be?

To be brief: Tell me how excited I should be about this.
posted by PMdixon to Law & Government (12 answers total) 1 user marked this as a favorite
Response by poster: What would really be awesome is if someone could break it down as a decision tree: "The First Circuit could do X, Y, or Z, which have outcomes A, B, and C. If they do X, SCOTUS could do U, V, or W, etc."

Why no, I'm not demanding, why do you ask?
posted by PMdixon at 2:54 PM on July 11, 2010

I don't think anyone knows for sure. The First Circuit is pretty liberal. If the First Circuit affirms, then it would be DOJ who would have the right to appeal to the Supreme Court. There are political considerations there. Of course, the Supreme Court is substantially less liberal than the First Circuit, and if past votes are any prediction it may depend on which side of the 5-4 split Kennedy decides to join.

Because the legal questions are so predominant, I would be surprised if the end result were a trial in the District Court. In other words, the appellate process is likely to determine the outcome of the two cases, one way or another, without a trial.
posted by ClaudiaCenter at 3:05 PM on July 11, 2010

How far out of the mainstream is the reasoning in those opinions?

Prof. Jack Balkin - a liberal and a supporter of gay marriage - thinks the 10th amendment argument (though hilariously audacious) is pretty unsupportable. Another contributor to his site thinks the equal protection argument is a lot sounder.
posted by Conrad Cornelius o'Donald o'Dell at 3:46 PM on July 11, 2010

Re: the Supreme Court. There are many considerations that go into a decision whether to grant cert. One of the most significant---it's mentioned in Supreme Court Rule 10---is whether there is a circuit split, i.e. whether one federal court of appeals has ruled in a way that is different from another. I don't know if there are other DOMA cases that might be decided soon, so I don't know the likelihood of there being a split.

Another consideration is whether a lower court has invalidated a federal law. Elena Kagan mentioned this one at her hearings, I believe. If the First Circuit upholds the district court's ruling, on whatever reasoning, it will have invalidated a portion of a federal law, so that definitely makes a cert grant more likely. If the First Circuit reverses, things might be different.

There are other less quantifiable consideration including strategic ones: a justice who thinks that the Court might reach a result that he or she does not favor may vote against granting cert. No one really knows how often that happens. Kagan's memos to Justice Marshall suggest that as a young clerk she thought it happened often.
posted by Xalf at 4:34 PM on July 11, 2010

Best answer: Decision tree from here (all probabilities are baldfaced guesses):

The First Circuit will do one of four things:
a1 - 60% likely: affirm (DOMA overturned for now; go to B)
a2 - 20% likely: reverse (original "real" trial continues and DOMA probably remains for now; but go to B)
a3 - 20% likely: remand (go to C)
a4 - make one of those decisions, then rehear en banc (go to A).

No matter what the First Circuit has done, the Supreme Court will do one of four things:
b1 - 1% likely*: refuse certiorari (First Circuit's decision stands forever)
b2 - 40% likely: affirm (First Circuit's decision stands forever)
b3 - 40% likely: reverse (the First Circuit's decision is overturned forever).
b4 - 19% likely: remand (go to C).

If a higher court "remands" a decision, it gives the lower court some logical constraints, whereupon the lower court renews or revises its decision within those constraints (go back to A or to trial court).

*SCOTUS ordinarily refuses certiorari in 99% of cases, but for a case as politically charged as this one, refusal of certiorari is closer to 1% likely.
posted by foursentences at 6:14 PM on July 11, 2010

Response by poster: (all probabilities are baldfaced guesses):

I entirely understand this caveat, but: you really give Kennedy even odds on overturning that chunk of DOMA?
posted by PMdixon at 7:32 PM on July 11, 2010

You're right that it's hard to say -- Kennedy's notoriously unpredictable (some will tell you this is because of an intellectually-honest drive to transcend politics and get at correct legal answers; some will tell you it's because of an intellectually-dishonest desire for the spotlight).

But consider that in each of the two most-recent gay rights cases (Romer v Evans and Lawrence v TX), Kennedy not only voted with the pro-LGBT majority but also wrote the majority opinion.

On the other hand, those cases both involved state laws that felt mean-spirited or archaic, whereas the present case involves a federal law that many Americans view as more reasonable.

More attentive court-watchers will probably be able to give you more nuanced answers in either direction, but to me it's a coin toss.
posted by foursentences at 8:09 PM on July 11, 2010 [1 favorite]

I disagree with foursentences about the likelihood of the Supreme Court granting cert; I think they will avoid this issue until at least, say, 20 states or so have affirmed gay marriage. The Supreme Court (or at least THIS Supreme Court) will go out of its way to avoid making "Brown v. Board" types of decisions where the Court is out in front of the American people's attitudes and the majority of states are regressive on the issue.

I think they will deny cert and keep denying it until there's a critical mass of states that allow gay marriage. Then and only then will they rule, as I think they have to, that "Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.... To deny this fundamental freedom on so unsupportable a basis as the racial sexual preference classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial sexual orientation discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race the same gender resides with the individual and cannot be infringed by the State." (Loving v. Virginia, 1967)
posted by Eyebrows McGee at 6:21 AM on July 12, 2010

Eyebrows McGee is talking about the Supreme Court granting cert in a case that asks whether the Constitution allows a state to ban same-sex marriage. That question might come up in the California Prop. 8 case, but it is not at issue in either of the cases that PMDixon asked about.
posted by Xalf at 6:59 AM on July 12, 2010

Also, I don't agree with Eyebrows's prediction on on that separate issue, but predicting this kind of thing is close to impossible.
posted by Xalf at 7:00 AM on July 12, 2010

True, Xalf. But I do think the SC will avoid as many gay-marriage-related cases as possible for as long as possible. I mean, mindbogglingly, Lawrence v. Texas was as late as 2003! (Striking down statutes criminalizing sodomy.) They seem to me to avoid many cases relating to sexuality and rights until it becomes impossible to ignore, and it just hasn't been a very aggressive court about pursuing circuit splits on controversial issues unless it's totally untenable.

But, you know, court watching is fun because of the unpredictability. :)
posted by Eyebrows McGee at 9:06 AM on July 12, 2010

I see what you are saying Eyebrows, but it's worth noting that the comparison to Lawrence isn't perfect because the court had already heard a case on same-sex sodomy, Bowers v. Hardwick in 1986, and come out the other way. By not taking a similar case sooner, they weren't just avoiding a contentious issue, they were also sticking to their precedent. Also, there may not have been a similar case that the court could have taken sooner. I don't think there were many sodomy prosecutions between 1986 and 2003 and the Supreme Court can only rule on a case that someone decided to bring.

That last point reminds me of one variable PMDixon did not ask about: what is the Obama Administration going to do here? They have 60 days to file a notice of appeal, and then briefing could take another few months. In that time, they could decide not to defend DOMA or they could make a real push for Congress to repeal portions of it. I have no idea whether those options are likely.
posted by Xalf at 9:34 AM on July 12, 2010

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