Supreme Court Update: United States v. Windsor (12-307), Hollingsworth v. Perry (12-144), Sehkar v. United States (12-357), Ryan v. Schad (12-1084) and Order List

June 27, 2013 Supreme Court Update

Greetings, Court fans!

The Court went out with a bang yesterday, overturning a key part of the federal Defense of Marriage Act (DOMA) in United States v. Windsor (12-307), and dismissing for lack of standing the appeal in Hollingsworth v. Perry (12-144), thus leaving intact the district court's decision invaliding California's Proposition 8 and paving the way for same-sex marriages to go forward in that State, at least for now. This Update will also cover two less newsworthy decisions, Sekhar v. United States (12-357), holding that "extortion" under the Hobbs Act does not include attempts to compel someone to recommend an investment, and Ryan v. Schad (12-1084), a relative snoozer on appellate procedure.

This Update will not be short. So, grab a cup of coffee, settle in, and finish up the Term with us.

Justice Kennedy joined the liberal wing and wrote for the majority in United States v. Windsor (12-307), in which the Court struck down § 3 of DOMA. Section 3 amended the federal Dictionary Act to define "marriage" and "spouse" so as to exclude same-sex marriages, affecting over 1,000 federal laws under which marital or spousal status is relevant. Congress enacted DOMA at a time when no State permitted same-sex marriage, but when it was clear that some States were considering doing so. Since DOMA's passage, 12 States (including New York) and the District of Columbia have chosen to recognize same-sex marriages. Edith Windsor and Thea Spyer, who lived in New York, began a relationship together in 1963. In 2007, the couple married legally in Canada. New York recognized that marriage as valid, even before it permitted same-sex couples to marry in the State. When Spyer died in 2009, she left all of her property to Windsor. Because of DOMA, the IRS determined that Windsor was ineligible for the marital exemption from the federal estate tax. Windsor paid a hefty tax, and then filed suit seeking a refund, arguing that § 3 of DOMA violated the guarantee of equal protection as applied to the Federal Government by the Fifth Amendment. The Attorney General informed the Speaker of the House that while the Executive would continue to enforce the law, the Department of Justice would not defend § 3 in court, based on its conclusion that sexual orientation was a classification that should be subjected to strict scrutiny and that § 3 did not pass muster under that standard. In response, the Bipartisan Legal Advisory Group (BLAG) of the House voted to intervene to defend DOMA's constitutionality. The district court permitted BLAG to participate as an "interested party."

With Windsor and the United States both supporting the view that § 3 was unconstitutional, and BLAG taking the opposing view, the district court found the section unconstitutional and ordered the Treasury to refund the tax to Windsor with interest. The Treasury declined to do so, and the Department of Justice appealed the ruling to the Second Circuit, on the theory that the Judiciary should have the final word on the constitutionality of the statute. BLAG also appealed. The Second Circuit agreed that heightened scrutiny should apply to classifications based on sexual orientation and affirmed. The United States, which still did not comply with the judgment and continued to enforce § 3 of DOMA, sought cert, as did BLAG. When the Court granted cert, it sought briefing on two additional jurisdictional issues: (1) whether the United States' agreement with Windsor precluded review; and (2) whether BLAG had standing to appeal. All parties agreed that the Court had jurisdiction, so the Court appointed an amicus to argue the alternative view.

The Court first dealt with the jurisdictional issue. Under Article III, courts only have jurisdiction to hear "cases or controversies" – that is, there must be a concrete disagreement between two opposing parties. In the majority's view, this requirement was clearly met in the district court because Windsor had been forced to pay estate taxes she did not believe she owed and the United States, while declining to defend the constitutionality of the statute, refused to refund the taxes, presenting a concrete injury to Windsor. Even after the district court ordered the United States to make the refund, it refused to do so, thus keeping the concrete injury alive and maintaining a controversy sufficient for Article III purposes. The Court then turned to prudential considerations, which caution against entertaining "friendly non-adversarial" proceedings without the "concrete adverseness which sharpens the presentation of issues." Here, however, the Court found that BLAG sufficiently addressed the need for an adversarial airing of the issues. Moreover, other prudential considerations strongly counseled in favor of deciding the case. "[I]f the Executive's agreement with a plaintiff that a law is unconstitutional is enough to preclude judicial review, then the Supreme Court's primary role in determining the constitutionality of a law that has inflicted a real injury on a plaintiff who has brought a justiciable legal claim would become only secondary to the President's." Moreover, if the Court declined to decide this case (and thereby conclude that the Second Circuit also lacked standing to do so), all the district courts will be left to grapple with the constitutionality of § 3, potentially for years, without guidance.

Having determined that it had jurisdiction to decide the case, the Court then tackled the merits. Justice Kennedy began by describing the long-standing role of States in defining and regulating marriage. Federal law, with but a few exceptions, has adhered to the States' definitions. Indeed, domestic relations is "an area that has long been regarded as virtually the exclusive province of the States." DOMA, however, supersedes the States' definitions of marriage, setting forth a new federal definition applicable to not just a single federal law based on a particular federal policy, but to all federal laws and regulations.

By recognizing valid same-sex marriages performed elsewhere and then permitting same-sex marriages in the State, New York gave "further protection and dignity" to same-sex unions. Yet DOMA "seeks to injure the very class New York seeks to protect. By doing so, it violates basic due process and equal protection principles…." DOMA's deviation from the tradition of recognizing state definitions of marriage "operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriage." Indeed, DOMA's legislative history reinforces the conclusion that interfering with state-sanctioned same-sex marriages was its specific purpose. DOMA was not enacted to pursue a federal policy in a specific area. It was, instead, a moral disapproval of homosexuality and an effort to "defend the institution of heterosexual marriage." Section 3 of DOMA thus "writes inequity into the entire United States Code." Its "principal effect is to identify a subset of state-sanctioned marriages and make them unequal." This differentiation demeans couples whose relationships States have sought to dignify and humiliates children of these couples. And Section 3's vast reach touches many, many areas of life, from calculating assets when applying for federal student loans, to determining whether a couple can be buried together in a veteran's cemetery, to determining whether Government integrity rules apply.

Although "Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment." DOMA is invalid, for "no legitimate purpose overcomes the purpose to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity." The Court concluded by making clear that it was not addressing whether States themselves could define marriage in a way that prohibits same-sex couples from marrying, reserving that issue for another day.

The majority's opinion prompted three dissents. The first, Justice Scalia's, was joined in full by Justice Thomas, and as to Part I only (the jurisdictional discussion) by the Chief. Scalia would have found no Article III jurisdiction to hear the case. Article III requires a live case or controversy, which requires adversaries. Here, Windsor and the United States both argued that § 3 of DOMA was unconstitutional and that the district court got it right. Windsor's concrete interest in her refund may provide her standing, but it does not rectify the lack of a controversy once the district court ruled. Nor does BLAG's presence solve the problem. Congress does not have general authority to defend its laws in court. Subject to few exceptions, not present here, that job belongs to the Executive. If the Executive refuses to enforce the law, Congress has many, many ways to remedy that failure, ranging from withholding money for programs to impeachment, but that fight is a political one that must take place outside the courtroom, not in it.

On the merits, Scalia chastised the majority for "how rootless and shifting its justifications are." Is the majority's decision premised on federalism? Unclear. While the majority spends pages discussing the States' historic role in defining marriage, it stops short of saying that the Federal Government lacks authority to do so in support of its enumerated powers. So why mention it at all? In Scalia's view, the majority does so "to support its pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term)." Is the decision based on equal protection? If it is, "it is a confusing one." The decision never addresses the key argument made by the parties – whether strict scrutiny or rational basis review or some other standard applies to laws restricting marriage to a man and a woman (the traditional Equal Protection Clause inquiry). Maybe the decision rests on substantive due process in light of the Court's statement that DOMA constitutes a "deprivation of the liberty of the person protected by the Fifth Amendment." But the reasoning can't be that either, because the majority does not find that same-sex marriage is "deeply rooted in our Nation's history and tradition." (Though one might argue that the right to marriage is….)

Having concluded that the sum of the majority's opinion is no stronger than its parts, Scalia proceeded to argue that the Constitution permits government to enforce traditional moral and sexual norms. At the time DOMA was passed, no state or country permitted same-sex marriage and it was essentially unknown in history. DOMA did no more than codify the current societal definition of marriage for federal law purposes. And DOMA furthered other legitimate purposes. For example, by providing a uniform federal definition consistent with preexisting law, DOMA preserved the intended effects of prior legislation, and avoided difficult choice-of-law issues, such as which State's law would apply to a couple married in a State recognizing same-sex marriage but domiciled in a State that did not. The majority inappropriately skips over these legitimate reasons, jumping to the conclusion that DOMA was enacted out of "malice."

While lower federal and state courts can distinguish this decision from challenges to state laws prohibiting same-sex marriages (and "should take the Court at its word and distinguish away"), in Scalia's opinion, "the view that this Court will take of state prohibitions of same-sex marriages is indicated beyond mistaking by today's opinion." While the majority purports to cabin its decision to valid state-law marriages, its language says otherwise. When the majority finds that the traditional definition of marriage has the "‘purpose and effect to disparage and injure' the ‘personhood and dignity' of same-sex couples," the writing is on the wall. "That is why the language is there."

While the Chief joined the jurisdictional portion of Justice's Scalia's dissent, he wrote separately on the merits. Like Scalia, he would find DOMA constitutional because of Congress' valid interests in uniformity and stability. He parted ways, however, on the impact of the Court's holding. In Chief's view, the majority's reasoning relied heavily on federalism principles and the States' power to define and regulate marriage. "[T]hat power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions."

Justice Alito also penned a separate dissent, joined by Justice Thomas in his discussion of the merits, but not the jurisdictional issues. Like the majority, Alito would find jurisdiction to decide the case, but on a different ground. In his view, the United States is not a proper petitioner since it did not seek to overturn the decision below. BLAG, however, had standing to do so because Congress should have the power to defend the constitutionality of its enactments where the Executive declines to do so. On the merits, Alito believes that same-sex marriage presents a "highly emotional and important question of public policy – but not a difficult question of constitutional law." Nothing in the Constitution provides a right to same-sex marriage. Certainly, substantive due process cannot since the right to same sex-marriage, recognized for the first time by Massachusetts in 2000, is not "deeply rooted" in our history. The social institutions of marriage and family evolve slowly and it is difficult to predict the consequences of any particular change, counseling against judicial intervention in the process. "Any change on a question so fundamental should be made by the people through their elected officials."

The Court then proceeded to duck the question of whether States themselves can limit marriage to heterosexual couples. Like Windsor, Hollingsworth v. Perry (12-144) came to the Court in the unique posture of a government refusing to defend the constitutionality of its own law, though it continued to enforce it. Unlike Windsor, however, neither the State of California itself nor any official government entity appealed the ruling of the district court. The upshot: 5 Justices voted to dismiss the appeal for lack of jurisdiction. Accordingly, the district court's order – which found Proposition 8 unconstitutional – stands, paving the way for same-sex marriages in the State (for now).

Now, the details: After the California Supreme Court ruled in 2008 that limiting marriage to opposite-sex couples violated the equal protection clause in the State's Constitution, voters passed Proposition 8, which amended the California Constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." After the amendment, same-sex couples could not have the title of "marriage," but could be recognized as a "domestic partnership," which is subject to all the same rights and responsibilities as are granted to or imposed upon married couples under California law. Same-sex couples challenged the law, arguing that it violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment of the Federal Constitution. The complaint named various state and local officials, all of whom refused to defend the law. As a result, the district court allowed the "official proponents" (Proponents) of Proposition 8 to intervene. After a 12-day bench trial, the district court found Proposition 8 unconstitutional and permanently enjoined it.

Defendants declined to appeal, but the Proponents did. Concerned about jurisdiction, the Ninth Circuit then certified a question to the California Supreme Court, asking the court for guidance as to whether "the proponents of an initiative measure possess either a particularized interest in the initiative's validity or the authority to assert the State's interest in the initiative's validity . . . when the public officials charged with that duty refuse to do so." The California Supreme Court responded in the affirmative, concluding that under California law, initiative proponents are authorized to appear and assert the State's interest in initiative's validity and to appeal when the public officials decline to do so. The Ninth Circuit held that this response was sufficient to confirm that the Proponents had standing and proceeded to affirm on the merits, holding that under Romer v. Evans (1996), California had to have a legitimate reason for withdrawing the right to same-sex marriage (though it may not have had the obligation to grant that right in the first place). Taking away the official designation of "marriage" while continuing to afford same-sex couples all of the rights and responsibilities of marriage did not further any legitimate state objective.

The Chief wrote for the 5 Justice majority, which this time included Justices Scalia, Ginsburg, Breyer, and Kagan, finding no jurisdiction to hear the appeal. For the majority, this case presented an easier jurisdictional question than presented by Windsor. Why? Here, while California had continued to enforce the law up until the district court's order, it did not appeal the order (unlike the United States in Windsor, which continued to refuse to pay the refund and appealed) and would have followed the order but for the Proponents' appeal. Thus, the sole question was whether the Proponents had independent standing to bring the appeal. The majority found that they did not. While the Proponents undoubtedly cared a lot about the subject matter, passionate feelings did not create an individualized and concrete interest necessary to confer standing. The Proponents (unlike BLAG) also were mere private citizens, rather than state officials, and had no agency relationship with the State. While California law might confer special status on the Proponents in California courts, "the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary." Accordingly, the Court dismissed the appeal for lack of standing and directed the Ninth Circuit to do the same. The result: the district court's decision invalidating Proposition 8 stands, paving the way for same-sex couples to marry in California, at least for now.

Justice Kennedy wrote for the 4 dissenters. In their view, the Proponents clearly had standing to appeal, in light of the unique features of the initiative process, which permits private citizens to propose legislation, even if public officials don't like or support it. The whole purpose of the initiative process would be undermined if "the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding." As the California Supreme Court found, the Proponents occupy a unique position – they have more than a generalized interest. They are limited in number, identifiable, and have made a substantial commitment, including obtaining the necessary signatures to get the initiative on the ballot. Their "unique relationship to the voter-approved measure. . . makes them especially likely to be reliable and vigorous advocates for the measure and to be so viewed by those whose votes secured the initiative's enactment into law." And the highest court in California has held that they are authorized to represent the State's interest in the validity of the law. That should be enough. "Of course, the Court must be cautious before entering a realm of controversy where the legal community and society at large are still formulating ideas and approaches to a most difficult subject. But it is shortsighted to misconstrue principles of justiciability to avoid that subject."

We turn now from constitutional law to criminal law. In Sekhar v. United States (12-357), the Court held that trying to force someone to recommend an investment (under threat of exposing their extramarital affair) might be very bad behavior, but not "extortion" under the Hobbs Act, 18 U.S.C. §1951(a). (Still, we wouldn't recommend trying this at home.) Petitioner Giridhar Sekhar was a managing partner in an investment firm being considered by the Comptroller of New York for investing state employees' retirement monies. The Comptroller's general counsel advised his boss not to invest in Sekhar's firm after learning that the State AG was investigating one of the firm's funds. Meanwhile, one of Sekhar's partners had heard rumors that the general counsel was conducting an extramarital affair. Sekhar decided to put that information to use, sending the general counsel a series of anonymous e-mails demanding that he change his recommendation and threatening to expose the alleged affair if he did not. The general counsel contacted law enforcement instead, and Sekhar was arrested and convicted of attempted extortion after the e-mails were traced back to him. The Second Circuit affirmed.

The Court reversed, with 6 Justices in the majority, and the 3 others concurring in the judgment. Justice Scalia wrote for the Court. The Hobbs Act makes extortion a federal criminal offense, defining extortion in relevant part as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear." In Sekhar's case, the jury specified on the verdict form that the property Sekhar attempted to take was "the General Counsel's recommendation to approve the Commitment" (a Commitment being the Comptroller's non-binding commitment to invest). Tracing the definition of extortion from its roots in the common law to its settled meaning when the Hobbs Act was enacted, the Court held that the alleged property in this case could not be extorted, because the alleged property was not transferable, and therefore not "obtain[able]." The Court noted that while the Hobbs Act had copied, nearly verbatim, a New York statute's definition of "extortion," it had not copied a separate provision making coercion – the mere use of threats to "compel another person to do or to abstain from doing an act which other such person has a legal right to do or to abstain from doing" – a crime as well. The Court also rejected the Second Circuit's conclusion that the general counsel had a property right in rendering sound legal advice to the Comptroller, free from threats. Even if there were such a property right, it was not a right Sekhar could have obtained.

Justice Alito, joined by Justices Kennedy and Sotomayor, concurred in the judgment. These Justices would have held outright that that an internal recommendation to make a government decision was not property at all, much less property that could be obtained. Nor was the recommendation the general counsel's personal property, as he clearly could not have sold it to someone else or taken it with him if he left his post. Finally, even if the Hobbs Act was ambiguous on this point, the rule of lenity would counsel in favor of the narrower interpretation of property.

Finally, in the per curiam opinion in Ryan v. Schad (12-1084), the Court considered the default rule set forth in Federal Rule of Appellate Procedure Section 41(d)(2)(D), which states that "[t]he court of appeals must issue [its] mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed." In 1985, Edward Schad was convicted of first-degree murder and sentenced to death for strangling a 74-year-old man. After an extensive series of state- and federal-court proceedings ended with the Supreme Court's denial of Schad's petitions for cert and for rehearing, the Ninth Circuit declined to issue its mandate as normally required by 41(d)(2)(D). Instead, the Ninth Circuit, sua sponte, construed a motion by Schad to stay the mandate pending the Ninth Circuit's decision in a separate en banc case as a motion to reconsider a prior motion that it had denied six months earlier. Based on its review of that previously rejected motion, the Ninth Circuit issued a stay a few days before Schad's scheduled execution. The Court, however, held that the Ninth Circuit had abused its discretion and that, as was articulated in its prior ruling in Bell v. Thompson (2005), only exceptional circumstances justify withholding an appellate court's mandate. No such exceptional circumstances existed here, according to the Court, since the Ninth Circuit declined to issue its mandate based on an argument it had already considered and rejected months earlier. The Court vacated the stay of execution and remanded the case with instructions to issue the mandate "immediately and without further proceedings."

And in one final tip of the hat before heading out for the summer, the Court granted cert in three more cases for next term:

White v. Woodall (12-794), which asks, "(1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not ‘clearly established' that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators."

Paroline v. United States (12-8561), which asks, "What, if any, causal relationship or nexus between the defendant's conduct and the victim's harm or damages must the government or the victim establish in order to recover restitution under 18 U.S.C. Sec. 2259?"

Cline v. Oklahoma Coalition for Reproductive Justice (12-1094). This case involves the constitutionality of an Oklahoma law requiring that abortion-inducing drugs be administered according to a particular protocol. The Court granted cert, but reserved any further proceedings pending a response from the Oklahoma Supreme Court to the following certified questions: "Whether H.B. No. 1970, Section 1, Chapter 216, O.S.L. 2011 prohibits: (1) the use of misoprostol to induce abortions, including the use of misoprostol in conjunction with mifepristone according to a protocol approved by the Food and Drug Administration; and (2) the use of methotrexate to treat ectopic pregnancies."

To those who made it this far, you are true "Court fans." We thank you for the following the Term with us and hope you enjoyed it as much as we did.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400