Well that was interesting, Scalia

Everyone today is talking about the fact that both the federal benefits/definition of marriage provision of DOMA is unconstitutional and that Proposition 8 in California is dead.

From the perspective of an appellate lawyer who read the transcripts of the argument, the DOMA decision isn't at all a surprise. The writing was on the wall on that one at argument. The only justice we were iffy about was Justice Kennedy, but his questions/comments at argument assured me, anyway, that his vote was going to be on the right side. It's a somewhat straightforward decision, though I'm not convinced it had to stray so far into federalism, but I'll concede that's not an area of the law I'm an expert in.

Justice Scalia's dissent in the DOMA case was predictable, too. If you've read his previous dissents on similar issues, notably the 2003 sodomy case Lawrence v. Texas, you should have expected he would issue a rollicking dissent. He didn't disappoint, with a dissent as long as the opinion of the court. My sense of Scalia is that the less sound, rational basis he has for his ruling, the more he blusters. He blustered an awful lot in Lawrence v. Texas and he blustered a lot today. He didn't just bluster about one thing, either. First, he blustered about the Court even ruling on the case because there's no jurisdiction. There was some bluster aimed at the Obama administration for refusing to challenge the original district court ruling that was in the plaintiff, Edie Windsor's, favor. The best bluster, of course, was on the topic of same-sex marriage itself. There's a whole paragraph about overcooked loaves and bad recipes.

There's a really disingenuous argument that this will bring chaos for those same-sex couples who marry in one state and then move to a state that don't recognize such marriages. A) That chaos exists whichever way the DOMA federal benefits provision goes. You're marriage is valid in one state, not in the other, and the feds will go with one state or the other. B) There are other marriages already in existence, marriages between one man and one woman, that are recognized in one state and not in another. First cousin marriages are not ever recognized in three states. (No first cousin marriage jokes: I have a cousin who married another cousin, and they are both bright, educated people.) So some marriages are already in that limbo and the federal government does not collapse under the weight of the chaos. He's all sound and fury about how outrageous it is for the majority to suggest it is only animus against gays and lesbians that led to DOMA (as if he wasn't alive when DOMA was being debated and passed).

So what we (didn't really) learn (because we already knew) from this dissent is that Scalia doesn't like the gays and doesn't like anyone suggesting it's just animus on his part that he doesn't like them. He just gets to morally disapprove of them and so does the law and that's that.

All of which makes what happened in the Prop 8 case so very, very interesting. Because the effect of the Prop 8 ruling is that Prop 8 is unconstitutional. But SCOTUS didn't say that. The federal district court judge, in a ruling I blogged about here, found it unconstitutional. Then what happened is that the relevant state authorities declined to appeal that decision. (Unsurprising as the trial was thorough and roundly recognized as offering no legitimate basis whatsoever for Prop 8, establishing it was a pretty indefensible law.) So then private citizens who had been involved in passing Prop 8 stepped in and pursued the appeal. SCOTUS today decided that those people did not have standing as required by Article III of the Constitution, so the court couldn't rule on the merits of their petition. Neither could the Ninth Circuit. So Judge Walker's ruling is the final say on Prop 8. Prop 8 is dead. Same-sex marriage is good to go in California

And Scalia was in the majority! So Scalia who hates the gays and thinks that's a perfectly valid justification for anti-gay laws actually took part in paving the way for same-sex couples in the most populous state in the nation to marry at will. One thing I know about Scalia is that he can always get to the result he wants, so was this the only way he could get enough votes to avoid the result he really, really didn't want? Which makes me desperate to know what on earth the negotiations in the justices's chambers were like. What discussions were going on? What possible rulings were on the table? Was there some game of chicken between Ginsburg and Scalia? Was she saying give us Prop 8 or we'll go all the way on marriage equality? Were Breyer and Kagan reluctant to go that far and thus happy to go along with this punt on Prop 8 as it gets to the right result on that particular law?

The negotiations that go on behind closed doors at the Supreme Court to reach coalitions in particular cases can be the stuff of legends. The most famous example is what was done to achieve a 9-0 ruling in Brown v. Board of Education. Chief Justice Earl Warren recognized the significance of reaching a unanimous opinion and worked carefully to make sure he got one. Then there was the famous switch in time that saved 9. There doesn't seem to be too much of that kind of stuff taking place in the modern court. (Justice Roberts's switch on the Afffordable Care Act might be remembered.) They don't seem to do much to find areas of consensus; they just issue a series of 5-4 decisions.

So when we get an odd vote split like this one (5-4 though it is, it's an odd combination of justices on each side), it piques my curiosity on how exactly they got there. And what other possible decisions could have been reached. Was there a possibility of not getting a 5 vote majority if they didn't go with the Article III argument?

Justice Kennedy was in the minority, the group who would have moved on to the merits of the case, along with Sotomayor, Alito, and Thomas. Here's my theory. I've long thought Judge Walker's long, well-reasoned decision on the Prop 8 federal trial was written directly to Justice Kennedy. I think it was a thorough integration of Kennedy's rulings leading to the inevitable conclusion that same-sex marriage bans are unconstitutional. I am not the only court observer who saw it that way. I think Kennedy took that bait. I think he was itching to write a majority opinion granting marriage equality across the land. I think Sotomayor was ready to go with him. I suspect that some combination of Ginsburg (though I suspect not so much her), Breyer, and Kagan were a little more reluctant to go that far, so they were ok with the Article III out. But if Scalia had refused to go along with it, would those three have joined up with Kennedy and Sotomayor to give marriage equality proponents the decision they wanted?

Did Scalia just accept same-sex marriage in California to avoid it nationwide? I hope we get the story someday.