As lawyers maneuver to try to shape how the Supreme Court deals with a stack of cases on same-sex marriage, the attorneys have had to deal with the possibility that Justice Elena Kagan would not take part if the Court were to review one of the key cases now awaiting it.
That is a choice that she alone has the authority to make, but based solely on the public record, it is clear that she would disqualify herself if the Court were to grant a case that reaches the Court from the First Circuit Court in Boston — one of the cases testing the constitutionality of the federal Defense of Marriage Act, which declares marriage as only between a man and a woman.
In fact, two summers ago, when Kagan was under consideration for the Court by the Senate Judiciary Committee, she essentially committed herself to recusal in that very case if it were to reach the Court, as it now has. Her response to questions posed by Republican Senators left no significant doubt about it. There was no sign then or since, though, that she would remove herself from any other case the Court might hear on same-sex marriage.
This issue for Kagan actually goes back to 2009, when she was serving as the U.S. Solicitor General, the government’s top legal advocate in the federal appeals courts and in the Supreme Court. In the first months of its time in office, the Obama Administration was in the midst of making up its mind whether it would defend the Defense of Marriage Act in the courts. The Bush Administration had defended it successfully in lower courts, but the Obama Administration had not yet done so. It had to make up its mind because two cases were developing, and the government had no choice but to respond since the validity of a federal law was at stake.
A California gay couple — Arthur Smelt and Christopher Hammer — had been married during a brief interval when California allowed such marriages under a state supreme court ruling (a decision that was later overturned by the voters of the state in November 2008). In December 2008, Smelt and Hammer filed a lawsuit in state court in Orange County, but since it targeted the federal Defense of Marriage Act’s ban on federal benefits for same-sex married couples, the Justice Department had the case transferred to federal district court in Los Angeles. The case would become known as Smelt v. United States.
And, in March 2009, six same-sex married couples in Massachusetts filed a constitutional challenge to DOMA’s benefits ban in federal district court in Boston. That state’s highest court had ruled in 2003 that gays and lesbians in that state have a state constitutional right to marry. The DOMA case in Boston would become known by the name of the lead individual suing, Nancy Gill – Gill v. Office of Personnel Management. Those six couples contended that they were wrongly being denied various federal benefits because of DOMA.
On June 11, 2009, the Obama Administration made its first formal move to defend DOMA’s ban — to the considerable consternation and in some instances outright anger of the gay rights community. In the Smelt case, the Justice Department asked the judge to dismiss the case on technical grounds, but in the course of a fifty-four-page legal brief, it defended all parts of DOMA as “a cautiously limited response to society’s still-evolving understanding of the institution of marriage.” It also noted that the 1996 law had been challenged several times, and that every court that had ruled had upheld it. (The Smelt case ultimately was dismissed on a technical legal basis, and is now closed.)
Then, on September 18 of that year, the Administration repeated its defense of DOMA’s benefits ban (Section 3) in the Gill case in Boston. The Justice Department’s thirty-page brief supporting a request to dismiss the challenge said the law “is consistent with prevailing equal protection case law.” As in the Smelts case, it contended that the courts should apply the most tolerant constitutional standard — “rational basis” review. Under that standard, the brief said, “Congress is entitled to respond to new social mores one step at a time and to adjust national policy incrementally.” Ultimately, the district judge struck down DOMA’s Section 3, and the First Circuit Court agreed with that outcome.
The judge had not yet ruled on the Gill case when Elena Kagan went before the Senate Judiciary Committee on June 28 two years ago as a Supreme Court nominee. During the hearings before that committee, Kagan told Sen. Charles Grassley, an Iowa Republican, that she and members of her staff in the Solicitor General’s office had “reviewed some briefs” and “participated in some discussions” with others in the Justice Department about the Smelt case.
Later, as seven Republican senators pressed her with follow-up questions, seeking written answers, both the Smelt and Gill cases came up in those exchanges. In response to one of those questions, she said she had not been the “decision-maker” in the Smelt case, and offered some brief, further elaboration on the review of the briefs. She noted that the case was in district court, a level of the judiciary where the Solicitor General does not play much of a role; the Solicitor General mainly oversees federal cases in the appeals courts and the Supreme Court. She refused to reply to questions about any discussions she had had about the case outside the Justice Department.
In response to another question about the Smelt case, she briefly responded, but added: “My participation in that case was sufficiently substantial that I would recuse myself if I were confirmed and this case were to come before the Court.”
To a question about whether she had reviewed briefs or had taken part in any discussions about the Gill case, she said simply: “Yes. I believe that discussion about Gill overlapped with discussions about Smelt.”
Although she did not say explicitly that she would recuse in the Gill case, if it reached the Court, as she had said about the Smelt case, the “overlapping” nature of the discussions of the two cases certainly left the distinct impression that she would not take part in Gill, either. Because the Justice Department’s briefs in the two cases paralleled each other, she clearly had had some input on both, and that kind of participation usually leads to recusal from any role in that particular case (but not necessarily in other, related cases).
It was after she had been approved for the Supreme Court and was serving that the First Circuit decided the Gill case, in May of this year, striking down DOMA’s Section 3 using a modified version of the “rational basis” test. In the meantime, the Obama Administration had changed its position last year on DOMA’s constitutionality, and it began arguing in the courts that Section 3 was unconstitutional. It abandoned its argument that the proper test should be the “rational basis” test, and instead opted for a “heightened scrutiny” test that is harder to satisfy constitutionally.
There are now three separate petitions pending in the Supreme Court seeking review of the Gill decision. One is by the Obama Administration, one by the state of Massachusetts (which had a parallel lawsuit challenging DOMA), and one by the Republican leaders of the House of Representatives. The GOP leaders have taken up the defense of DOMA in place of the Justice Department, the usual defender of the constitutionality of federal laws.
The GOP leaders’ challenge would be the one most affected if the Court were to take the Gill case. Without Kagan’s participation, there is a chance that the other eight Justices would divide evenly. In that situation, a lower court decision at issue is simply upheld without comment or explanation. Thus, the First Circuit ruling would stand, but such an order would not set a precedent, so DOMA’s Section 3 — the benefits ban — would be invalid only in the New England states that are in the First Circuit — Maine, Massachusetts, New Hampshire, and Rhode Island, plus Puerto Rico.
This week, though, the GOP leaders told the Court that, while they still prefer a grant of review in their petition in the Gill case, they were prepared to have the Court accept one of the other government petitions, in a case from a federal district court in San Francisco. The Obama Administration, too, has made a switch. It now prefers to have the Court grant a decision last month by the Second Circuit Court — perhaps the most sweeping federal appeals court decision ever in its constitutional support for equality for gays and lesbians, in the case of Windsor v. United States. The central figure in that case, Edith Windsor of New York, has now told the Court that she, too, favors a grant of the government petition in her case.
Meanwhile, the gay rights lawyers who filed the Gill case in Boston have also weighed in at the Court, suggesting a different alternative for the Court to review if it should decide to take a case other than Gill. Those attorneys filed a brief urging the Court to grant a separate petition they have pending in Pedersen v. Office of Personel Management(docket 12-231), seeking review of a decision by a federal district judge in Connecticut striking down DOMA’s benefits ban. (The brief taking that position, filed Thursday, can be read here.)