Gay Marriage Supporters Score TKOs at Supreme Court

      When Jack Baker and Michael McConnell went to court in 1971 to try to be married, justices of the Minnesota and the U.S. supreme courts gave them hardly the time of day. The Minnesota justices had no questions for the couple’s lawyer; one of the justices turned his chair around to show his scorn for their case. At the U.S. Supreme Court, the justices turned the case away without a hearing “for want of a substantial federal question.”
      Four decades later, the tables have turned. Courts, politicians, and the American public appear ready to accept, and in some quarters embrace, marriage equality for gay men and lesbians. Opponents, on the other hand, are having more and more trouble being taken seriously with their attenuated arguments against legal recognition for same-sex couples.
      In advance of last week’s Supreme Court arguments in the pair of gay marriage-related cases, the Washington Post editorially dismissed the arguments against gay marriage as “beyond farfetched.” In the courtroom itself, the attorney defending California’s gay-marriage ban, Proposition 8, had his back against the wall from the get-go. The next day, the lawyer defending the federal Defense of Marriage Act (DOMA) abandoned all the substantive arguments against same-sex marriage and defended the law only on civics textbooks rationales: uniformity and judicial restraint.
      In the Prop 8 case, Hollingsworth v. Perry, conservative inside-the-beltway lawyer Charles Cooper got his comeuppance early when Justice Sonia Sotomayor asked him whether he could specify any circumstance of rational anti-gay discrimination other than marriage. “I cannot,” Cooper conceded, blowing a hole in the arguments for keeping gay teachers out of the classroom or gay history out of public school curricula.
      Cooper had no good answer moments later when Justice Elena Kagan asked him to specify what harm would result to the institution of marriage or to opposite-sex couples from legal recognition of same-sex marriages. Cooper initially tried to avoid the question, but when pressed by Justice Anthony M. Kennedy to answer he could say only that it was “impossible” to foretell the consequences.
      Kagan cornered Cooper again when he contended that it was sensible to reserve marriage for opposite-sex couples to further procreation. When Kagan asked why 55-year-old couples should be allowed to marry at all, Cooper was stuck suggesting that women of that age might still bear children.
      From the conservative side of the bench, Justice Antonin Scalia raised the specter of children harmed by being raised in same-sex households. Sociologists disagree on the subject, Scalia said. But, as Washington Post blogger Ezra Klein pointed out, Scalia either had not read or ignored the brief from the American Sociological Association stating that children raised in same-sex households fare just as well as those in opposite-sex families.
      In the DOMA case, United States v. Windsor, Paul Clement, the former U.S. solicitor general that House Republicans chose to defend the law, signed a brief that incorporated the procreation and harm-to-children arguments against same-sex marriage. But he uttered not a word about those arguments in his half hour before the justices.
      Instead, Clement argued that Congress acted to maintain a uniform national definition of marriage and to allow the issue to be decided in the political process. Sotomayor punched a hole in the uniformity argument. “You are treating the married couples differently,” Sotomayor said, contrasting New York — which recognizes same-sex marriage — with Nebraska, which does not.
      Kagan later confronted Clement with the reason that Congress in fact cited for passing DOMA: “to express moral disapproval of homosexuality,” as the House committee report put it. Clement ran as fast as he could from the language. “If that’s enough to invalidate the statute, then you should invalidate the statute,” he said.
      With both cases argued, Supreme Court watchers were all but unanimous in scoring both sessions as TKOs for the gay marriage proponents. Even so, handicappers were not predicting decisive victories for marriage equality in either case. In the Prop 8 case, the dream team lawyers Theodore Olson and David Boies urged the justices to constitutionalize marriage rights for gays and lesbians nationwide. There were no takers. The justices indeed seemed to shy away from a ruling at all; the appeal could be dismissed on procedural grounds. With Prop 8 struck down by lower courts, gay marriage would return in California, but with no fingerprints from the justices.
      As for DOMA, the liberal bloc plus Kennedy seem likely to rule it unconstitutional. But Kennedy might join solely on federalism grounds, leaving the broader question of extending equal protection rights to gays and lesbians for another day.
      For his part, Chief Justice John G. Roberts Jr. seems content to leave gays and lesbians to the political process. “Political figures are falling over each other to endorse your side of the case,” Roberts told attorney Roberta Kaplan as she ended her argument against DOMA. Gay men and lesbians in the 41 states that do not allow same-sex marriage might well disagree — and have less patience than the happily married chief justice. But Roberts appears correct in sensing the future course of events.

Majority of Justices Skeptical of DOMA

      A majority of Supreme Court justices appeared ready on Wednesday, barring a jurisdictional hurdle, to strike down the federal Defense of Marriage Act (DOMA) provision that bars federal benefits to legally married same-sex couples.
      Four liberal justices all indicated likely agreement with the Obama administration’s position that the law amounts to unconstitutional discrimination against same-sex couples. Justice Anthony M. Kennedy, who often holds the balance of power between the court’s conservative and liberal blocs, signaled his concern that the law intrudes on the states’ traditional prerogatives to define marriage.
      “You are at real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody,” Kennedy said to Paul Clement, a former U.S. solicitor general retained by House Republicans to defend the law. Kennedy said the law meant the federal government was “intertwined” with people’s daily lives.
      Earlier, Clement had faced a sharp question from the court’s senior liberal, Ruth Bader Ginsburg, who listed some of the federal benefits unavailable to married same-sex couples under the 1996 law. “For the federal government to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave,” Ginsburg said, “one might well ask, what kind of marriage is this?” Later, Ginsburg said the law created two kinds of unions: “full marriage and then this sort of skim-milk marriage.”
      The exchanges over DOMA’s impact came only after a preliminary 50-minute round of arguments over whether the issue was properly before the court at all given the Obama administration’s refusal to defend the law. President Obama decided in February 2011 to stop defending the law in court but to continue enforcing it. In the case before the court, United States v. Windsor, a lesbian New York City widow, Edith Windsor, won two lower court decisions entitling her to a refund of $363,000 she paid in federal estate taxes; the survivor of an opposite-sex marriage inherits his or her spouse’s estate tax-free.
      The court appointed Vicki Jackson, a Harvard law professor, to argue that it had no jurisdiction over the case because the government agreed with Windsor that the law was unconstitutional. Jackson was also asked to argue that the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) had no standing to come into the case to defend the law.
      Both Chief Justice John G. Roberts Jr. and fellow conservative Justice Antonin Scalia used the jurisdictional argument to tweak Obama and his administration for its stance in the case. “I don’t see why he doesn’t have the courage of his convictions,” Roberts said of Obama’s decision to continue enforcing the law while attacking it in court. Scalia said the administration was disregarding the executive branch’s customary obligation to defend laws in court. “If we’re in this new world,” Scalia said, “I don’t want these cases to come before this court all the time.”
      Representing the administration, deputy solicitor general Sri Srinivasan defended Obama’s decision. “The president made an accountable legal determination that this act of Congress was unconstitutional,” he said. In his turn, Clement insisted that there was “nothing objectionable” in allowing the House to appear in court to defend the law after the administration’s shift.
      Turning to the merits, Clement began by depicting the legal issue on DOMA as “quite narrow” despite the “deeply held” views pro and con on gay marriage. “Basic principles of federalism” allows the federal government to define marriage “solely for purposes of federal law,” Clement said.
      Repeatedly during his half-hour presentation, Clement stressed the need for “uniformity” in federal law. He made no reference to substantive arguments made in his brief for discouraging same-sex marriage, such as channeling procreation and child-rearing into opposite-sex marriages.
      Liberals Sotomayor and Stephen G. Breyer both questioned the uniformity supposedly advanced by DOMA. “You are saying New York’s married couples are different than Nebraska’s,” Sotomayor said. New York is one of nine states along with the District of Columbia that license same-sex marriages.
      Fellow liberal Elena Kagan also criticized the uniformity argument but then quoted from the House committee report on DOMA, saying the bill was enacted “to express moral disapproval of homosexuality.” Clement disavowed the purpose. “The House Report says some things that we are not, we've never invoked in trying to defend the statute,” Clement said.
      Solicitor General Donald Verrilli, representing the administration, and New York City attorney Roberta Kaplan, representing Windsor, forcefully denounced DOMA as discriminating against gays and lesbians. “What section 3 does is exclude from an array of federal benefits lawfully married couples,” Verrilli said. Later, Verrilli rejected Clement’s arguments that DOMA was enacted “for any purpose of uniformity, administration, caution, pausing, any of that.”
      In her turn, Kaplan said that “many thousands” of legally married couples are being treated as unmarried by the federal government “solely because they are gay.” But she faced questions from Roberts and Scalia aimed at leaving the issue s to the political process. “As far as I can tell, political figures are falling over themselves to endorse your side of the case,” Roberts said.
      Kaplan saw the history of the issue differently. “No other group in recent history has been subjected to popular referenda to take away rights that have already been given or exclude those rights, the way gay people have,” she said.
        If the court followed its usual procedure, the justices spent Wednesday afternoon in private conference considering the gay-marriage case argued on Tuesday: the constitutional challenge to California’s Proposition 8, Hollingsworth v. Perry. They will conference on the DOMA case on Friday. Decisions in both cases are due by the end of June, and probably not sooner.

Justices Could Skirt Ruling on Proposition 8

      The Supreme Court justices appeared to open the possibility of skirting a definitive ruling on California’s gay-marriage ban in Proposition 8 after hour-long arguments on Tuesday, but a majority of the justices also signaled at least tentative support for marriage rights for gays and lesbians.
      At Chief Justice John G. Roberts Jr.’s urging, all three attorneys in the case were directed to begin their presentations by addressing an important jurisdictional issue: whether the supporters of the 2008 ballot measure have legal standing to defend it in federal court after state officials declined.
      By the end of the argument, observers were counting five justices — Roberts and liberal justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan — as possible votes to rule that the initiative’s sponsors could not appeal the lower court decisions striking down the measure. “Once it’s passed, they have no proprietary interest in it,” Ginsburg commented early in the argument.
      A ruling to that effect could wipe Prop 8 off the books and reinstate gay marriage in California. Supporters might try to argue, however, that the lower court ruling applies only to the two same-sex couples who filed the challenge in 2009.
      The only Californian on the court, Justice Anthony M. Kennedy, seemed more open at times to allowing the initiative’s sponsors to take the state’s place in defending the measure. Late in the session, however, he raised the possibility that the court could simply dismiss the case as one that the justices should not have agreed to review at all. “I just wonder if the case was properly granted,” Kennedy said.
      The jurisdictional issue had hung over the case from the start, but many observers had assumed the court was prepared to get over that hurdle when it agreed to review the case in December. For his part, Justice Antonin Scalia made clear his view to that effect on Tuesday. “It’s too late for that, too late for that now, isn’t it?” Scalia said, referring to a possible dismissal.
      On the merits of the issue, the justices appeared divided along predictable conservative-liberal lines. All four liberal justices appeared skeptical of banning marriage for gays and lesbians. Kagan pointedly challenged Charles Cooper, attorney for the Prop 8 supporters, to specify what harm would result “to the institution of marriage or to opposite-sex couples” from allowing same-sex couples to marry. Cooper initially deflected the question, but pressed by Kennedy for a direct response said it was “impossible for anyone to foresee the future accurately enough to know exactly what those real-world consequences would be.”
      From the opposite side, Roberts, Scalia, and Samuel A. Alito Jr. voiced doubts about what Cooper continually referred to as “redefining marriage.” Scalia pointed to what he depicted as an open question among sociologists about the effects of raising children in same-sex households. “There’s no scientific answer to that question at this point in time,” Scalia said. The fourth conservative, Clarence Thomas, maintained his customary silence during the argument, but he is counted as unlikely to support judicially imposed recognition of same-sex marriage.
      Kennedy appeared to tilt his swing vote toward recognizing marriage rights for same-sex couples, most pointedly in a question about the estimated 40,000 children being raised by same-sex parents in California under existing law. “They want their parents to have full recognition and full status,” Kennedy said to Cooper. “The voice of those children is important in this case, don’t you think?”
      Despite the skeptical questioning of Cooper, lawyers on the opposite side — former U.S. solicitor general Theodore Olson for the plaintiffs and Solicitor General Donald Verrilli for the Obama administration — failed to find strong support from the bench for an agreed-on basis for invalidating Prop 8. The justices had three options before them: a broad ruling for same-sex marriage rights nationwide, advocated by Olson; a narrower stance advocated by the government affecting California and seven other states that recognize civil unions but not marriage for same-sex couples; and the narrowest position, taken by the Ninth U.S. Circuit Court of Appeals, that would apply only to California for first granting and then repealing same-sex marriage rights.
      Olson opened with a broadly framed plea for same-sex marriage rights, but when pressed by Scalia he backpedaled. “You could write a narrower decision,” Olson said. But Olson faced doubts from Kennedy in arguing for the Ninth Circuit’s rationale. California was being penalized, Kennedy said, for “not going far enough” to protect same-sex couples. “That’s a very odd rationale,” Kennedy said.
      In his turn, Verrilli also seemed to make little headway with the so-called “eight-state solution” that would mandate gay marriage rights in states that have already approved civil unions. “A state that has made considerable progress has to go all the way,” Ginsburg asked skeptically, but a state that “has done absolutely nothing at all . . . can do as it will.”
      Roberts was liberal with the clock for all three lawyers, allowing the scheduled hour to expand to 77 minutes. “The case is submitted,” Robert said as marshal Pamela Talkin prepared to gavel the session to an end. The court meets again at 10 a.m. on Wednesday to hear a second gay-marriage-related case: the constitutional challenge to the federal Defense of Marriage Act (DOMA).

'Heightened Scrutiny' in Gay Marriage Cases?

      Gay marriage supporters appear confident and opponents defensive on the eve of arguments this week before the Supreme Court on California’s Proposition 8 and the federal Defense of Marriage Act (DOMA). So it is not too early to speculate not only on whether the justices will strike down the two anti-gay measures but also on how far the court will go in charting the way for legal equality for gay men and lesbians.
      Lawyers for the plaintiffs in the two cases will be urging the court to put laws that treat people differently based on sexual orientation in a special, constitutionally suspect category. They will urge the court to subject such laws to some form of “heightened scrutiny.” Under that test, a law cannot be upheld unless the classification used is substantially related to the achievement of important government objectives.
      The U.S. government, represented by Solicitor General Donald Verrilli, will be taking that position as well in both cases. That is the position that President Obama endorsed two years ago when the Justice Department stopped defending DOMA in court. And the government significantly decided to file a brief in the Prop 8 case taking the same position and to ask for argument time before the court to urge the court to strike down California’s gay marriage ban.
      Lawyers on the opposite side — the Prop 8 supporters in Hollingsworth v. Perry and the House of Representatives’ Bipartisan Legal Advisory Group (BLAG) in United States v. Windsor — will be urging the court to apply the minimal constitutional standard: the so-called rational basis test. Under that test, a law can be upheld if its defenders can offer any reasonable justification for treating one class of people differently from another.
      DOMA and Prop 8 may well be struck down even if the court applies only the rational basis test. The arguments for Prop 8 and DOMA have been rejected by lower courts. But for future cases the court’s decision about what test to apply may well determine the future course on such other issues as gay adoption, workplace protections, and school curriculums.
      The court long ago ruled that race was a suspect classification and that race-based laws must meet the highest constitutional: strict scrutiny. Under that test, a law cannot be upheld unless it furthers a compelling government interest and is narrowly tailored to that purpose. It has often been said that the test is “strict in theory and fatal in fact.” In the 1970s, the court held that sex was also a suspect classification for equal protection purposes. Through a succession of cases, the court developed what it has called “intermediate scrutiny” for laws treating men and women differently.
      The court faced the issue of what test to apply to sexual orientation in the 1990s when it considered a challenge to the Colorado initiative that barred the enactment of any laws to prohibit discrimination on the basis of sexual orientation. The Colorado Supreme Court had applied strict scrutiny in ruling the measure invalid. But the justices found they did not have to go that far. Instead, in Romer v. Evans (1996), Justice Anthony M. Kennedy led the 6-3 majority that the law failed the minimal rational basis test because it served no purpose other than to impose a disadvantage born of animosity toward gays and lesbians.
      Lawyers for the plaintiffs in this week’s cases will argue that gays and lesbians meet all the criteria the court has used to rule a legal classification suspect. First, gays and lesbians have been subject to a long history of discrimination. Second, a person’s sexual orientation does not affect his or her ability to contribute to society. Third, sexual orientation is an immutable and distinguishing characteristic. And, fourth, lesbians and gay men lack the political power to protect themselves from discrimination.
      In their brief representing the New York widow Edith Windsor in the DOMA case, lawyers note that the BLAG lawyers on the opposite side “hardly contest[ ]” the first two criteria, “the most significant to the analysis.” Nor do the lawyers defending Prop 8 deny the history of discrimination. Instead, the lawyers in those two cases both argue that gays and lesbians now have sufficient political power for the court to allow the marriage issue to be worked out in what the BLAG lawyers call “the democratic process.”
      The democratic process has been working better for gays and lesbians over the past few years. Gays and lesbians can now serve openly in the military. And gay marriage supporters won four statewide referenda in November. And public opinion polls now show significant majority support nationwide for gay marriage: 58 percent to 36 percent. If the Supreme Court allows Prop 8 to stand, gay marriage supporters in California can almost certainly get it repealed at the ballot box.
      Still, anti-gay groups are off base in depicting the LGBT community as politically powerful enough to protect themselves from discrimination. Gay teachers are still being fired in the United States, and would-be gay parents are being blocked from adopting children. And, if the court rules narrowly on Prop 8, the gay marriage bans on the books in most of the states will remain presumptively valid.
      The minimalist approach may be necessary to forge a five-justice majority. But the court will be truer to the goal of equal justice under law if it goes further and points the way toward ending legal discrimination against gays and lesbians in all forms.

At 80, Ginsburg Needs to Know When to Step Aside

      Fresh from celebrating her 80th birthday, Ruth Bader Ginsburg will take her place on the Supreme Court bench this week as the twelfth justice in history to serve past that milestone. Completing her 19th term, Ginsburg walks slower these days, but her age has not visibly affected her work as a justice, either in her questions on the bench or in her written opinions.
      Still, Ginsburg must by now be contemplating her legacy. Like her admirers, she probably views her years on the court with a mix of satisfaction and disappointment. Ginsburg has done her work well, but, contrary to the title of Jeffrey Toobin’s insightful profile in The New Yorker (March 11), she has not been not a “heavyweight” on the court. Because of what Toobin calls “less fortunate timing,” Ginsburg has been in dissent on many of the issues that most concern her: civil liberties, racial equality, and women’s rights.
      To safeguard her legacy, Ginsburg must now make the right decision about when to retire from the court. She has spoken often — most recently to Toobin — about wanting to stay until she is 82, the age at which her judicial hero Louis Brandeis retired from the court. Conveniently, she will reach that age in 2015, with Barack Obama, a civil liberties-minded Democrat, still in the White House. Asked by Toobin whether the party of the president is relevant to a justice’s decision whether to retire, Ginsburg replied: “I think it is for all of us.”
      Ginsburg’s place in history is assured not by her service on the court but by her role as a litigator in the 1970s in establishing a new constitutional right: the right to be free from governmental discrimination based on sex. Ginsburg graduated in 1959 from a top Ivy League law school, Columbia, but, despite a recommendation from the dean of Harvard Law School, was turned down for a clerkship by Justice Felix Frankfurter.
      Ginsburg went on to found the Women’s Rights Law Reporter while teaching at Rutgers Law School. In 1972 she became the first woman to gain tenure at Columbia Law School and also established the American Civil Liberties Union’s Women’s Rights Project. Already by then, Ginsburg had won the first of four women’s rights rulings at the Supreme Court: a unanimous decision in 1971 striking down an Idaho law automatically favoring men over women in the appointment of administrators of estates (Reed v. Reed).
      Ginsburg’s next victory, Frontiero v. Richardson (1973), relied in part on her counterintuitive insight that laws that discriminate against women can also disadvantage men. The law at issue made it harder for a woman in military service to claim her husband as a dependent for purposes of health benefits than it was for a man to claim his wife. The court ruled the distinction unconstitutional but without a majority holding on the standard to be used in sex discrimination cases.
      Only in Ginsburg’s third case, Craig v. Boren (1976), did the court agree on what is now known as the “intermediate scrutiny” test: laws that discriminate on the basis of sex are unconstitutional unless they further an important governmental interest in a way substantially related to that interest. The law struck down in the case allowed girls to drink 3.2 percent beer at age 18 but boys only at age 21.
      Ginsburg had argued for the more demanding “strict scrutiny” test, but over time intermediate scrutiny has proved to have effective bite in limiting sex discrimination. In her first term, Justice Sandra Day O’Connor, the first female justice, led a 5-4 majority in striking down the single-sex admissions policy at a state nursing school in Mississippi (Mississippi University of Women v. Hogan, 1982). A decade-and-a-half later, Ginsburg, as the court’s second female justice, led a stronger, 7-1 majority in striking down the all-male admissions policy at Virginia Military Institute (United States v. Virginia, 1996). “Women seeking and fit for a VMI-quality education cannot be offered anything less,” Ginsburg declared.
      Unfortunately for Ginsburg’s legacy, the VMI case stands all but alone as a memorable majority opinion. Instead, her memorable opinions of recent years have been in dissent, most notably her anguished attack on the 5-4 decision upholding the federal ban on so-called partial birth abortions (Gonzales v. Carhart, 2007). She can rightfully take credit, however, for using her dissent in the same year in Ledbetter v. Goodyear Tire & Rubber Co. to prompt Congress to overturn a decision making it harder to bring pay discrimination cases under federal law.
      Like Ginsburg, Thurgood Marshall established his place in history before becoming a Supreme Court justice through the school desegregation litigation he directed at the NAACP Legal Defense Fund. As a justice, Marshall resisted delicate suggestions in the 1970s to retire with a Democrat, Jimmy Carter, in the White House. Marshall stayed for another 12 years but accomplished little; his successor, Clarence Thomas, now votes against the positions that Marshall worked and fought for.
      Ginsburg told Toobin that she would stay on the court “as long as I can do the job full steam.” By her own words, however, her stamina is not the only relevant consideration. Ginsburg’s legacy will depend in part on whether she makes the right decision about the best time to step aside.

Gun Lobby Setting Its Sights on Judicial Nominees

      Elena Kagan was braced for questions about abortion when she made courtesy calls on senators in advance of her confirmation hearing as a nominee for the U.S. Supreme Court in 2010. She was surprised, however, to discover that the most frequent topic on senators’ minds was not abortion, but guns. One after another, senators tried to scope out her likely views on the Second Amendment by asking Kagan, among other things, whether she had ever owned a gun or fired one herself or whether she personally knew any gun owners.
      Recalling the conversations at a recent dinner at Georgetown Law School, Kagan said she acknowledged to senators that she had not done much hunting in her native Manhattan. But she promised Idaho’s Jim Risch that, if confirmed, she would get Justice Antonin Scalia to invite her along on one of his hunting trips. True to her word, Kagan got Scalia to take her, first, to a shooting range and then to a duck hunt and then, last October, to Montana to hunt antelope. They saw no antelope, Kagan related, but she was proud to report that she did bag a deer.
      The anecdote is entertaining, but it is also powerful evidence of the growing influence that the gun lobby — in particular, the National Rifle Association (NRA) — is having on judicial nominations. The NRA opposed Kagan’s nomination, just as it had opposed President Obama’s first Supreme Court nominee, Sonia Sotomayor, the year before. And the NRA “scored” both votes — that is, “yes” votes counted against a senator in the gun lobby’s annual legislative scorecard, an important source of information for gun rights-minded voters.
      The NRA came up short on the Sotomayor and Kagan nominations even though the confirmation votes were close by historical standards: 68-31 for Sotomayor, 63-37 for Kagan. Last week, however, the gun lobbies were being credited with derailing Obama’s nomination of Caitlin Halligan, a former New York state solicitor general, to the federal appeals court for the District of Columbia. “Halligan’s hostility to gun rights was the biggest factor in her defeat,” Curt Levey, executive director of the conservative Committee on Justice, wrote after the Senate’s 51-41 vote on March 6 fell short of the 60 needed to limit debate and act on the nomination. Republicans cast all 41 votes to block a vote; only one GOP senator — Alaska’s Lisa Murkowski — crossed party lines to allow the nomination to come to a vote.
      Levey, who used to lambaste Senate Democrats for bottling up President Bush’s judicial nominees, has been touting the importance of the gun issue in evaluating candidates for federal judgeships for the past four years. “Guns are the new abortion,” Levey wrote in an op-ed for Fox News in October 2009. Levey praised the NRA’s precedent-setting decision months earlier to oppose Sotomayor’s nomination as a model for future judicial nominations. “The future of gun rights depends as much on the composition of the federal bench as on the strength of the legal arguments,” Levey wrote. Gun owners, he continued, were likely to emerge “as a potent part of the coalition advocating against liberal judicial activism. . . .”
      Halligan, an honors graduate of Princeton and Georgetown Law School, had been around the track previously before last week’s setback. Obama first nominated her in 2011, but the NRA mounted a strong campaign against her. The Democratic leadership’s effort to bring the nomination to a vote in December fell six votes short, 54-45. Obama renominated her twice in 2012, but Democrats still lacked the votes needed to proceed to a vote.
      The gun lobbies’ case against Halligan consists of her actions as a lawyer for the state of New York in two suits brought against gun manufacturers — one by New York City and one by the state. In both cases, Halligan argued as a lawyer representing the state’s position in suits that were initiated not by her but by other officials: Mayor Michael Bloomberg and Attorney General Eliot Spitzer. Senate Republicans saw Halligan’s work as activism; Democrats insisted Halligan was simply doing her job as a government lawyer.
      Nan Aron, president of the liberal Alliance for Justice, believes pure partisan politics was as big a factor in Halligan’s defeat last week as the gun lobbies’ stance. She notes that with four vacancies, a majority of the D.C. Circuit’s seven judges are Republican appointees. Republican senators “would just as soon keep it as it is,” Aron says.
      Still, Aron worries about sees the NRA’s influence on judicial nominations. “The NRA has sway with a number of senators from both parties,” Aron says. “It is a growing concern that that organization would now be trying to block votes on eminently qualified candidates for completely bogus reasons.”
      In Aron’s view, Halligan has “no record on guns whatsoever.” “She was never in the driver’s seat,” Aron says of Halligan’s work in the suits against manufacturers. “It’s rare for the Senate to hold against a judicial nominee the clients they represented during litigation.” She notes that Senate Democrats opposed to John Roberts’ nomination as chief justice did not mine his record for unsavory clients during his years as a corporate lawyer.
      But that was then. For now, it appears that aspirants for the federal bench are well advised to get on good terms with the gun lobby. Just like Kagan, they might want to take up hunting.

Will the Court Heed Public Opinion on Gay Marriage?

      Harvard Law School professor Michael Klarman closed his history of the gay marriage movement, From the Closet to the Altar, by speculating about the possible backlash if the Supreme Court ruled in favor of marriage rights for gays and lesbians. Even though legalizing gay marriage seems inevitable, Klarman said, a Supreme Court decision to that effect might trigger a backlash of the sort that that the court suffered when it outlawed school segregation or recognized abortion rights.
      Klarman finished his manuscript a year ago and decided not to try to update it before publication in September. By then, much had changed. Most notably, President Obama had declared his personal support for gay marriage, and the Democratic Party platform included a plank to the same effect.
      In addition, the federal appeals court in Boston became the first appellate-level tribunal to rule the federal Defense of Marriage Act (DOMA) unconstitutional. That law bars federal marriage-related benefits to same-sex couples even if they are legally married in their home states.
      Since September, gay marriage supporters have won at the ballot box for the first time since opponents began putting the issue before voters in the late 1990s. Voters in three states — Maine, Maryland, and Washington — approved referenda on Nov. 4 on gay marriage bills passed by their respective state legislatures. On the same day, Minnesota voters rejected a constitutional amendment to ban marriage for same-sex couples.
      The Supreme Court is set to take on gay marriage for the first time in 40 years in two cases to be argued later this month. The court will consider DOMA in United States v. Windsor on March 27; the day before, the court will hear a challenge to Proposition 8, the gay marriage ban passed by California voters in 2008 by a 4 percent margin (Hollingsworth v. Perry).
      On the eve of those arguments, Klarman thinks the possibility of backlash has receded. As he notes, public opinion has shifted on this issue faster perhaps than on any civil rights issue in U.S. history. Two decades ago, the public was opposed by a two-to-one majority; ten years ago, the gap was still about 10 percent. Today, polls register a 10 percent margin nationwide in favor of recognizing marriage for same-sex couples — and 61 percent in favor in California.
      The shift in public opinion can be seen as well in the outpouring of briefs filed last week in support of gay marriage in the two cases at the Supreme Court. Among a dozen briefs filed urging the justices to strike DOMA down was one on behalf of 278 employers, including many of the country’s biggest corporations. DOMA hurts employers, they say, by forcing them to discriminate against their gay and lesbian employees. Straight workers can add their spouses and children to their health plans, but not gay or lesbian employees.
      In another brief, 212 current members of Congress urge the court to rule DOMA unconstitutional, including several who voted for the law back in 1996. DOMA was “not the result of impartial lawmaking,” the lawmakers say. None of the rationales for the law offered today — saving money, encouraging stable families, helping children — “comes remotely close to justifying it,” the lawmakers say.
      The House’s so-called Bipartisan Legal Advisory Group is defending the law after the Obama administration’s decision two years ago to acknowledge it as unconstitutional. The House leaders voted 3-2 along party lines to step into the case. A supporting brief from Senate Republicans gathered only 10 signatures; 40 Democratic senators signed on to the brief opposing DOMA.
      The United States itself filed briefs supporting gay marriage in both the DOMA and Prop. 8 cases. Admittedly, the administration government took a narrow stance on Prop. 8, challenging the gay marriage ban on the ground that the state had extended marital rights to same-sex couples but not the name itself. That argument would knock down gay marriage bans in seven other states but leave others not directly affected.
      Tellingly, a brief supporting gay marriage bans was joined by 19 states, only half of those with such measures on the books. And more than 100 Republicans, including campaign managers for the GOP’s two most recent presidential nominees, urged the court to recognize marriage rights for same-sex couples.
      The justices do not decide cases, of course, by consulting polls or measuring the respective stacks of friend-of-the-court briefs. But amicus briefs can have an impact. The court cited a pro-affirmative action brief filed by former military officers in its decision to allow use of race in university admissions in 2003. Klarman thinks the gay marriage briefs may have similar impact in the pending cases, especially on the justice seen as having the pivotal vote: Anthony M. Kennedy.
      “Justice Kennedy cares more than anyone about what the backlash is going to be,” Klarman explains, so he is “not oblivious” to shifts in public opinion. Kennedy also cares about his legacy — and the court’s. “It would be very attractive to be on the right side of history,” Klarman says. And it is “pretty clear,” he says, which way history is headed.