Yesterday, I finally had a spare moment to set up for today’s cases. And I threw in my predictions just to go on the record. No, I don’t know why the Court is taking three days to do what I was expected it to do in one. So, here’s today’s action from the Supreme Court:
Sekhar v. United States: Recall that this case deals with whether an in-house counsel’s opinion to a public entity can be considered “property” for purposes of an extortion statute. Reversed, unanimously, in an opinion by Scalia: this is not “property” so it cannot be extortion. Concurrence by Alito, joined by Kennedy and Sotomayor.
Hollingsworth v. Perry: This is the constitutional challenge to California’s Proposition 8, which banned same-sex marriages by initiative. The first question was whether the proponents of Proposition 8 had standing to defend it in court, given that California’s governors and attorneys general declined to do so. It appears not, which means the Court would have no reason to reach the Equal Protections merits of the Proposition 8 challenge. 5-4 vote, Chief Justice Roberts has the majority opinion, joined by Scalia, Ginsburg, Breyer, and Kagan. Dissent by Kennedy, joined by Thomas, Alito, and Sotomayor. That’s… not the breakdown I predicted. The result is the appeal is vacated and dismissed, leaving… I guess leaving the District Court opinion in place. Gotta think about this.
United States v. Windsor: This is the constitutional challenge to the Federal Defense of Marriage Act, as applied to tax liability on life insurance benefits paid in 2009 to a woman who married her partner of then thirty-eight years in Canada in 2007. Again, there was a serious question of the standing of the only people who wanted to defend the law, the House of Representatives, since the President declined to defend the law. Holding: DOMA is unconstitutional under the equal protections clause of the Fifth Amendment. 5-4 vote, Kennedy in the majority, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Apparently there’s a finding that DOMA serves no “legitimate” purpose, which means DOMA would not survive even rational basis review. Dissents by Roberts (on jurisdiction and federalism), Scalia (on judicial activism), and Alito (on procreation); Thomas joins Scalia’s dissent and Roberts joins Scalia’s dissent in part, and Thomas also joins Alito’s dissent in part. Probably a lot of good language in there about standards of review which I’ll have to read later today.
So we have no clear statement of a right to same-sex marriage, but apparently laws that prohibit it serve no legitimate purpose, at least at the Federal level. As yet untested, because of the lack-of-standing holding in the Perry case, is whether a legitimate purpose to a same-sex marriage ban can be found within a state’s plenary police power. That fight will have to wait for another day, in another case, perhaps far enough in the future that it would be decided by a court with slightly different makeup than today’s.
And with that I have to get ready for court. I’ll join the discussion later, as I’m able to do so.