Jeffrey Toobin is a staff writer for The New Yorker, a senior analyst for CNN, and author, most recently, of "The Oath: The Obama White House and The Supreme Court." We conducted this interview over e-mail; a transcript follows.
Dylan Matthews: Is DOMA doomed?
Jeffrey Toobin: Recall that my record as a prognosticator of high-profile Supreme Court decisions is, well, less than perfect.
But still. Doomed seems a little strong. It certainly seems like the four Democrats – Ginsburg, Breyer, Sotomayor and Kagan – will vote against DOMA under any theory that will get them a majority. The Democrats would probably prefer a straight-up ruling that DOMA violates the rights of gay people to equal protection, under the Fourteenth Amendment.
Curiously, Kennedy did not say a word about DOMA and the fourteenth amendment. This is odd because he is the author of the two most important gay rights decisions in the court’s history – Lawrence and Romer, both decided under the fourteenth amendment. But Kennedy did express several times that he thought DOMA infringed on states’ rights, another pet issue of his. The Democrats would surely join him in this approach if that’s what it took to overrule DOMA.
Matthews: Sotomayor made a lot of the idea that sexual orientation
should be a protected class. What's the significance of that? There's no way they're applying intermediate scrutiny, is there?
Toobin: To summarize briefly, the court has long said that with most laws and regulations, the justices will basically leave them alone. Most laws are within the discretion of the democratically elected branches of government. But when it comes to laws that appear to discriminate against oppressed groups – so- called protected classes -- they will apply greater scrutiny before approving the law. Over time, the justices have come up with three categories: strict scrutiny, for laws based on race. (The justices virtually all the time strike down these laws.) Intermediate scrutiny, for laws based on gender. And rational basis, for all other laws.
The question is where laws that discriminate against gay people fall in this spectrum. If gay people are not a protected class, then the justices will apply a rational basis test to DOMA and Prop 8. That makes it more likely that they will uphold those laws. But if gay people are a protected class – as the Obama Administration said they should be – the court will apply greater scrutiny, demand a more coherent justification for the laws, and will be more likely to strike them down.
So are gay people a protected class? This was why John Roberts was asking all those questions suggesting that gay people are so politically powerful. He wanted to show gay people are not a protected class. The court has never said for sure where gay people fall on this spectrum.
I don’t think it’s out of the question, if the justices want to strike down DOMA, that they apply intermediate scrutiny. They could also strike down the law even under the rational basis test. Many people (like John Paul Stevens, for example) find this categories kind of useless. They assert, with some force, that the justices do what they want to do and then find a justification after the fact.
Matthews: How serious do you think the standing issues are going to be in these cases? It seems like there's a lot of room for them to dodge the substantive issues.
Toobin: Both are serious, but I think Prop 8 is a bigger deal. Both raise similar important issues. In each case, the relevant government is refusing to defend the law. The governor and Attorney General of California think Prop 8 is unconstitutional; the President thinks DOMA is unconstitutional. So who should defend the law? This is important, because governors and presidents should not have the unilateral power to declare laws unconstitutional; someone has to defend the law.
In DOMA, the House of Representatives stepped in to defend the law. That is not free from controversy, but I think the justices will uphold the House’s right to do so.
As for Prop 8, the law is being defended by a group of supporters of the law. Their connection to the case is pretty thin. I think the court could well toss the case on standing grounds, which would almost certainly mean that Prop 8 would be invalidated in California.
Frankly, I’m pretty cynical about the court and standing. The justices use standing (at least sometimes) when they want to duck difficult substantive issues. That may well be what they do in Prop 8 and perhaps even in DOMA.
Matthews: The Reinhardt logic, that Prop 8 violates the 14th amendment but generic bans on same-sex marriage don't, took something of a battering yesterday. Is there any chance of a narrow substantive ruling?
Toobin: I suppose it’s possible, but that decision was all-but-explicitly pitched to Kennedy – and Kennedy went out of his way to dismiss it. So it seems unlikely at this point.
Matthews: The DOMA case is curious in that it's one of the few DOMA cases going through the courts that doesn't have anything to do with equal faith and credit. Does that hurt its odds?
Toobin: I doubt it. The Justices know this is their chance to address DOMA. I doubt they want to go through the drama of another DOMA case, even with the added factor of a full faith and credit issue.
Matthews: What kind of system would we be left with if the DOMA case gets thrown out for standing reasons? What would it even mean for DOMA to be invalid only in a few states?
Toobin: Here it’s important to draw a distinction between the two cases. If Prop 8 is thrown out on standing, then (almost certainly) the district court decision becomes the controlling precedent. That means that Prop 8 would be gone in California, but such a decision would have no immediate application in other states.
If the court strikes down DOMA, it strikes it down for the whole country. I can’t think of a scenario where DOMA survives in some states but not in others. But maybe I am not thinking hard enough.
Matthews: Do you worry at all about the precedent that might be set, if these are thrown out for standing reasons, that failing to defend a law in court can effectively void it? That seems to give the executive an unprecedented amount of power.
Toobin: As I noted above, I think this is a real concern. I don’t think there should be a system where the executive both declares a law unconstitutional and then prevents a court from hearing challenges to that judgment about the law. That does give the executive (Governor or President) too much power.