Perry & the Passive Virtues: A Postscript

Last month there was much speculation on the ultimate fate of Perry v. Schwarzenegger in the Supreme Court. Will the case get past the Ninth Circuit on the merits, or stall on standing grounds?  Might the Supreme Court deploy the passive virtues to avoid decision on this still-contentious issue, as it has with other hot buttons in the past?

As we continue to watch and wonder, there’s one additional wrinkle that’s worth remembering:  When it comes to the federal courts, domestic relations cases are an easy mark.  Federal judges are famously loathe to insert themselves into messy and bitter family law disputes, and many of them happily and liberally invoke the domestic relations exception to avoid involvement in such cases.  But as I’ve written about elsewhere, one largely overlooked trend among the federal courts is the stealth expansion of this doctrine to exclude not only diversity cases, but also federal question cases.  Using a variety of doctrines, the lower federal courts have increasingly declined consideration of family law cases involving federal questions, sometimes explicitly invoking the domestic relations exception.

What are the odds that the Supreme Court would actually use this tactic to avoid the merits in Perry?  Turns out there’s at least some precedent for the proposition that a marriage equality challenge doesn’t raise a federal question.  In its 1972 opinion in Baker v. Nelson, the Supreme Court summarily dismissed an appeal from Minnesota’s Supreme Court upholding that state’s same-sex marriage ban because the case didn’t raise a substantial federal question.  Much more recently, the Court has used exceedingly broad language about the relationship of the federal courts to domestic relations to avoid another socially-divisive issue:  the Pledge of Allegiance in public schools.  In Elk Grove v. Newdow, although acknowledging that it might be necessary in “rare instances” to “answer a substantial federal question that transcends or exists apart from the family law issue,” the Court observed that “in general it is appropriate for the federal courts to leave delicate issues of domestic relations to the state courts.”  And later:  “When hard questions of domestic relations are sure to affect the outcome, the prudent course is for the federal court to stay its hand rather than reach out to resolve a weighty question of federal constitutional law.”  Thus, the much-criticized decision seemingly created a default rule deferring to the states and state courts on all domestic relations issues.  Since Newdow, a number of courts have relied on the opinion to extend the domestic relations exception to federal question cases.  And after the decision came down, scholars (Carpenter, Four Arguments; Case, Marriage Licenses; Sunstein, The Right to Marry) identified the decision’s potential implications for marriage equality cases, suggesting it was an indication of the Court’s reluctance to resolve the issue, and observing that certain language in the opinion seemed “tailor-made for a future case involving a gay marriage claim.”

Will this broad language hold sway with the Court in future cases?  There’s every reason to be skeptical that the Supreme Court would in fact rely on Newdow to avoid deciding Perry on the merits.  After all, if Newdow arguably expanded the scope of the domestic relations exception, it seems to have done so unwittingly.  That certainly wasn’t the point of the opinion.  Still, Newdow went to Herculean efforts to avoid ruling on the merits of the Pledge issue, using domestic relations as the means by which it avoided a politically-loaded decision.  And the Court may well be facing another issue at least as politically loaded by the next term.

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Many thanks to the folks at Concurring Opinions for hosting me for the last month or so.  And thanks as well to those who engaged with my posts for their reactions and questions.

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1 Response

  1. Howard Wasserman says:

    But did Newdow present a truly unique situation in that neither “side” on the issue could write the opinion they wanted to. The Establishment claim cannot be rejected consistent with existing precedent, while the political fallout of striking down “Under God” would be too great. I am not sure that is true for SSM–standards of scrutiny can be used to reject the claim and the political fallout from accepting the claim (given the current direction of public opinion), while initially negative, would be far less and far more manageable.