Jane Schacter is the William Nelson Cromwell Professor of Law at Stanford Law School and a leading expert on constitutional and sexual orientation law. After two historic Supreme Court rulings on same-sex marriage were handed down this morning, Schacter sat down with The Daily to discuss the decisions, their implications for California and the future of same-sex marriage litigation.

 

The Stanford Daily (TSD): First, there was a huge Stanford connection today as Pamela Karlan, professor of law, served as attorney to Edith Windsor, the plaintiff in the case challenging the Defense of Marriage Act (DOMA). What’s the mood like at Stanford Law School today?

Jane Schacter (JS): Unfortunately, Pam had preexisting plans to leave the country this morning. She was here — in the country, not at the school — long enough to learn about the outcome of the opinion.

Pam Karlan and [Professor of Law] Jeff Fisher run the Stanford Law School Supreme Court Litigation Clinic and do a magnificent job of that. They had a really great team of students on this case, and the students are gone for the summer so it’s not nearly as celebratory as it would be. But I know this is an enormously significant victory and they are very proud of their work, as they should be.

 

TSD: Did anything catch you by surprise this morning, or was it business as expected?

JS: I would say these two decisions tracked pretty closely to what I and many other expected, which was that DOMA would likely be overruled, though by no means was that a certainty. Justice Anthony Kennedy [’58] was probably going to write the opinion. He wrote the other two major gay rights opinions — one in 1996 and one in 2003 — which the Supreme Court has decided so it’s interesting that he once again finds himself in that role.

I think the dismissal of the Prop. 8 case on standing was somewhat telegraphed in the oral arguments, though, as often as not, those tea leaves from oral argument are wrong. In this case the outcome was, I think, at least what I expected.

 

TSD: I know it’s a little bit complicated, so for the folks at home, what does the Prop. 8 decision mean for Californians?

JS: It’s a very interesting question. What it means is, because no party had standing to challenge the decision, the only people who were unhappy with the decision and seeking to repeal it were those who sponsored Prop. 8 on the ballot. Basically, what the Court said was [that the initiative sponsors] were just like any other citizens with very, very strong feelings on the issue.

What it means is that basically it winds things back to the federal trial court’s opinion — the opinion of [former] Judge Vaughn Walker J.D. ’70, striking down Prop. 8. The Governor of California has already said, based on the strength of that opinion from the district judge, that he is ordering all county clerks across the state to issue marriage licenses [to same-sex couples].

At that point what I think is going to happen is in many counties across the state, clerks are going to start issuing marriage licenses and same sex couples will resume marrying, which they were doing for a few months before Prop. 8 passed. I imagine there will be some clerks in more conservative parts of the state that will resist. We’ve already seen Imperial County trying to get involved in the litigation, [in] the one that went to the Supreme Court. Some of the clerks are probably going to balk and there may be future litigation over whether Judge Walker’s opinion is indeed binding all the way through the state, even on county clerks who were not party to the litigation when he issued the order. It’s some more technical legal stuff and I think some more litigation to come.

 

TSD: There were strange bedfellows in the Prop. 8 decision, with conservative justices Samuel Alito and Clarence Thomas, swing justice Kennedy and liberal justice Sonia Sotomayor dissenting. How did they end up on the same side of the decision?

JS: It was very surprising to see that group dissenting together. We don’t know what goes on behind the scenes. What was surprising to me was Justice Kennedy writing the [dissenting] opinion saying that we should have gotten to the merits of the case. What we don’t know is what Justice Kennedy would have said on the merits of the case. He’s the swing voter, typically, and you can draw two things from his opinion in the DOMA case as to what he would have said [in the Prop. 8 case]. One is that he talks extensively about the importance of equality, respect and dignity for same-sex couples. In that context, he says the federal government has to recognize their marriages.

But the same principles would seem to apply in the context of states that are declining to marry same-sex couples. So you could take from that that he would be sympathetic to the idea that states should have to respect and honor the dignity of same-sex couples by allowing them to marry. On the other hand, the other powerful string from the DOMA opinion is that states have traditionally had the more significant role in marriage and family law, not the federal government. So to the extent that it’s a decision about state autonomy, federalism and states’ rights, it would cut against the federal court telling a state that it has to marry a same-sex couple. So we don’t know which way he would have gone on the merits in the case.

 

TSD: So it seems to me that there’s some dissonance in the two rulings’ views on federalism. State law reigns supreme when they legalize same-sex marriage, but California state law was superseded when the Supreme Court decided that Prop. 8’s proponents did not have standing to defend the law. How do you reconcile these views?

JS: It’s a very interesting problem and once again Justice Kennedy, as an advocate of federalism, finds himself basically saying that the federal government should not displace the traditional role of the state and also [that] we should listen to the California Supreme Court. The California Supreme Court said it thought that, according to California law, the sponsors of the ballot proposition were authorized to defend it and should be found to have standing.

Here’s the rub of it for Justice Kennedy. The question of who has standing is a question of federal constitutional law and the fact that a state allows certain people to appear in court under certain circumstances does not guarantee, as a matter of federal law, that the party will be found to have standing. There is an independent inquiry about that, but you’re right — the California Supreme Court did not have the final word on this.

 

TSD: Does the Prop. 8 decision set any precedent for the future of ballot initiatives in the judicial system?

JS: It’s going to be very interesting because a kind of paradox confronted the Court in terms of the standing issue. On one hand, if you say that ballot sponsors don’t have standing, you kind of open up a situation where elected officials can do an end run around the initiative process by simply choosing not to defend it.

On the other hand, going the other way on the issue would also be an odd situation because we have elected officials like the Governor and the Attorney General who are responsible for making litigation decisions for the state. They’re answerable to voters when they stand for reelection and they’re clearly the ones given the authorization to make these decisions. It would seem odd to say that a group of private citizens, in perpetuity, with no official appointment, no electoral accountability or other duty to the voters, get to represent the state in court.

So basically the Court chose one course here over the other. They’re saying it’s too anomalous to let private parties — parties who don’t really have a concrete stake, [but] just a strong policy belief — into court to litigate.

 

TSD: Predictions are always perilous in this business, but what do you think is in the cards for same-sex marriage in the future?

JS: What I think might happen in the future is, when someone puts a ballot initiative together, they may attempt to put language in the initiative specifically saying that when elected officials don’t defend the initiative in court, the voters are appointing the sponsors [and] giving them the authority to do that. That was actually done in a redistricting initiative in California, on the ballot the same time as Prop. 8. That may be a way to avoid the situation, by formally appointing the ballot sponsors to defend it in case elected officials decline to do so. That wasn’t done in the case of Prop. 8.

I also think that there will be a complicated process in the federal government of effectuating the really important and historic DOMA ruling because there are over 1,000 federal programs in play. The Obama administration will have to, program by program, figure out how to effectuate the overruling of DOMA. The president today said that he wants his agencies and Cabinet officers to swiftly comply, but that’s going to take a while because different agencies are in different situations. Some, like immigration, are a lot more controversial than others. That’s one chapter.

In California, we’re going to have some litigation over the scope of Judge Walker’s opinion. There’s going to be a debate about how broad it is, whether the government has the authority — which he asserted today — to order every clerk in the state to start issuing marriage licenses. I think the governor is likely to be on the right side of that argument but I think there is probably going to be some more litigation on that.

There’s going to be some more litigation [elsewhere]. That language in the Windsor decision today overturning DOMA — about the importance of respecting same sex couples — is going to be perceived to have a lot of utility in states that have resisted marriage equality. I imagine that the same team that argued the Prop. 8 case — [David] Boies and [Theodore] Olson — will probably take their resources to another state and start all over [in] building a case for national marriage equality. That’s what they were hoping to get. They did not get that today, but they did get a big victory in California.

 

TSD: Looking back, what does today mean for same-sex marriage in the legal landscape?

JS: I think that it’s really a moment to take stock. It is no small thing to see the Court invalidate a piece of federal legislation like DOMA. Only a few years ago, it would have been highly implausible to think that the Supreme Court would be willing to do that. Public opinion has shifted so quickly. I think this is a case where the Supreme Court comes somewhat late to the party. This struggle has been engaged in earnest for a number of years now and the Supreme Court is coming in at a time where public opinion has already shifted in favor.

We now see, routinely, national opinion polls with a majority in support of same-sex marriage, and that’s very different from what it was even five or six years ago.  I think the Supreme Court is acting cautiously, but there’s no doubt that the DOMA ruling was a significant one.

 

This interview has been condensed and edited.