Has same-sex marriage become a 'political question'?

Oral arguments recently held before the 10th U.S. Circuit Court of Appeals on whether the state of Utah's definition of marriage is unconstitutional suggest that the U.S. Supreme Court may again be asked to determine whether states are free to decide that "marriage" should be reserved for opposite-sex couples. Kitchen v. Herbert, 13-4178.

One of the 10th Circuit judges on the three-judge panel suggested that Utah's voters had the right to enact their definition of marriage. Another said, "What Utah has done is validated what has been historical practice forever." But the third judge invoked the specter of one of the Supreme Court's most controversial decisions, Dred Scott v. Sanford, 60 U.S. (18 How.) 393 (1856), saying, "The law does not allow the type of discriminatory behavior that is at issue in these types of cases."

Whatever the outcome, because Utah's attorney general is defending his state's law, it is probable that the merits of the issue will be able to reach Supreme Court. He is not following the election-year advice of U.S. Attorney General Eric Holder, who told state attorneys general to take positions like those of former and current California Attorneys General Jerry Brown and Kamala Harris, and oppose their states' opposite-sex marriage laws.

The Brown/Harris strategy resulted in the Supreme Court holding that the proponents of California's Proposition 8 did not have standing to appeal U.S. District Judge Vaughn Walker's ruling that Prop. 8 is unconstitutional, so the appeals to the 9th Circuit and Supreme Court were dismissed. Hollingsworth v. Perry, 133 S. Ct. 2652 (2013). Current Gov. Jerry Brown then decided that he had the power to order all of California's county clerks to issue marriage licenses to same-sex couples, even though clearly established law says that federal court default judgments apply only to the plaintiffs and have no precedential effect. The state Supreme Court has refused to stop Brown. And it seems Holder and the rest of the executive branch want to nationalize this strategy.

This method of effectively vetoing a state law deprives the federal courts of the adversarial process necessary for them to fairly decide disputes. As California Supreme Court Justice Joyce Kennard pointed out in finding that Prop. 8's proponents had standing under state law, "The judicial system is designed to operate through public proceedings in which adversaries litigate factual and legal issues thoroughly and vigorously. When an initiative measure is challenged in court, the integrity and effectiveness of the judicial process require that a competent and spirited defense be presented." Perry v. Brown, 52 Cal. 4th 1116, 1168-70 (2011) (Kennard, J., concurring). It also provides a bad example for deputy attorneys general who, with some regularity, must represent positions they disagree with.

California's same-sex marriage odyssey began years ago, when another current member of the state's executive branch (then-San Francisco mayor, now-lieutenant governor, Gavin Newsom) ignored existing law and ordered San Francisco's clerk to issue marriage licenses to same-sex couples. Then-Attorney General Bill Lockyer argued in support of the state marriage law, and Newsom was reprimanded by the state high court. Some 4,000 same-sex marriages were declared void. Lockyer v. City and County of San Francisco, 33 Cal. 4th 1005 (2004).

The city and county of San Francisco then filed suit claiming that marriage law violated the state Constitution, and the state Supreme Court agreed. In re Marriage Cases, 43 Cal. 4th 757 (2008). Newsom defiantly announced on the courthouse steps that, "The door's wide open now. It's gonna happen - whether you like it or not!" That pronouncement is said to have rallied votes in favor of Prop. 8, which effectively overturned In re Marriage Cases. See Strauss v. Horton, 46 Cal. 4th 364 (2009).

Now, in the run-up to this year's election, Newsom, Brown, Harris and their supporters have made marriage licenses available to same-sex couples by refusing to defend Prop. 8.

But will California's experience affect subsequent cases that reach the Supreme Court? Clues may be found in the interesting line up of majority justices in Hollingsworth: Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg and Elena Kagen. Three of the so-called "liberal" justices (Breyer, Ginsburg, Kagen) joined with two so-called "conservatives" (Roberts, Scalia) in requiring that an agent of the state appear for there to be Article III standing. In doing so they noted that the Prop. 8 proponents had not taken an oath, and did not have a fiduciary duty to the state - suggesting these justices may intend to hold state officials' feet to the fire when they use the federal courts to, in effect, veto existing state law.

The dissenters included Justices Clarence Thomas and Samuel Alito, who made it clear in Windsor v. United States, 133 S. Ct. 2675 (2013), that they do not believe that states are constitutionally barred from limiting marriage to opposite-sex couples, and were critical of the trial in Hollingsworth. Add to that the stay from the Supreme Court of the Utah court's judgment, which came after the district court and the 10th Circuit refused to issue one, and in which none of the justices dissented.

These clues may suggest that the Supreme Court will let same-sex marriage continue to percolate in the state "laboratories," and possibly that the court will decide that it is a "political question" that the states should be left to decide for themselves, free from interference by federal courts. The court's reliance in Windsor on cases that hold that the validity of a marriage depends upon state law adds weight to this argument, and the U.S. attorney general's announcement that the executive branch will recognize same-sex marriages performed in Utah before the Supreme Court's stay was issued, when that state does not, ratchets up the level of controversy.

Generally, a political question is one that the courts determine should be resolved by another branch of government. Earlier cases included the consideration of federalism principles in that analysis, but since Baker v. Carr, 369 U.S. 186 (1962), the court has nominally limited the discussion to the separation of powers. However, the Supreme Court has long adhered to a "domestic relations exception" to federal court jurisdiction in cases involving the validity of a marriage, so maybe it will look to the reasons underlying that "exception," and return to "Our Federalism." See In re Burrus, 136 U.S. 586, 593-94 (1890) ("[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.").

In Baker the court said that a political question is one where, inter alia, "there is ... a lack of judicially discoverable and manageable standards for resolving it ... ; or an unusual need for unquestioning adherence to a political decision already made." In this setting, do the federalism and policy concerns underlying the "domestic relations exception" to federal court jurisdiction create a lack of judicially manageable standards to resolve the issue? Does the U.S. attorney general calling for states to oppose their own laws, after Windsor's affirmation that states determine the validity of a marriage, and after his recognizing of the Utah marriages, create a need for the court to further underscore that defining "marriage" is not one of the "few and defined" powers granted to the federal government? The Federalist No. 45.

Although the current uproar may not neatly fit into any of the Baker categories, the court's existing policy of "hands off" state marriage disputes may lead it to, in effect, abstain from deciding whether states may constitutionally limit marriage.

The 10th Circuit judge's invoking of Dred Scott may prove prophetic, not because limiting marriage to opposite-sex couples equates to our nation's tragic history of enslaving African-Americans, or the legacy of that slavery addressed in Loving v. Virginia, 388 U. S. 1 (1967), but because Dred Scott removed a hotly contested political issue from further debate, an issue which some say caused the Civil War. In his Dred Scott dissent, Justice Benjamin Curtis suggested that the Supreme Court should not answer every constitutional question, and that some such questions should be left to the political process. See Keith E Whittington, "The Road Not Taken: Dred Scott, Judicial Authority and Political Questions," The Journal of Politics, Vol. 63, No 2. May 2001, pp. 365-91. Given the passion on all sides of the issue, perhaps the Supreme Court will heed Curtis' lesson by letting the states decide the same-sex marriage issue, each in their own way.

Kris Whitten is a retired California deputy attorney general.