For advocates and foes of same-sex marriage, two names have suddenly taken center stage in the legal universe: Kennedy and Romer.
Kennedy - that would be associate U.S. Supreme Court Justice Anthony Kennedy - is the court's perennial swing vote. Romer - as in Romer v. Evans - is the 1996 decision penned by Kennedy that struck down a Colorado amendment barring the state from passing laws to protect homosexuals and bisexuals.
The two names are in the spotlight because last Thursday a federal appeals court panel in Boston found that a central provision of the Defense of Marriage Act - which defines marriage as between a man and a woman - is unconstitutional. The ruling propels the DOMA case toward the high court, where Kennedy's interpretation of Romer, a case that turned on the 14th Amendment's Equal Protection Clause, will be pivotal.
The clause prohibits the states from denying citizens equal protection under the law. Over time the Supreme Court has carved out more rigorous protection for groups that have faced discrimination over such fixed characteristics as race, religion, and gender. In the jargon of the court, these factors deserve a higher level of scrutiny than other claims of discrimination - claims based on, say, weight or economic status.
The notable development in Romer was that the court appeared to open the door to including sexual orientation as one of those special categories. "From the time Romer came out, a lot of people believed the court was applying a higher level of scrutiny ... but just not saying so," said Steve Sanders, who teaches constitutional law at the University of Michigan Law School.
In the DOMA case, the First Circuit Court of Appeals in Boston, while relying on Romer, was explicit about the fact that it was applying a more searching level of scrutiny. According to Yale Law School Professor William Eskridge, attention will now turn to the author of Romer. "I'm tempted to say everything will hinge on whether Justice Kennedy reads Romer as broadly," said Eskridge.
The Supreme Court could choose to overturn Romer. "This court is not shy about overturning decisions that are just a few years old," said Daryl Lapp, a lawyer with Edwards Wildman Palmer in Boston who submitted a joint amicus brief with the American Civil Liberties Union against DOMA in the Massachusetts case.
PROP 8 PLAYS A ROLE, TOO
Romer is at the heart of another same-sex marriage case, the challenge to Proposition 8, the California law banning gay marriage. In that case, too, the Ninth Circuit Court of Appeals in San Francisco defined Romer broadly when ruling that California had denied its citizens rights when it allowed, then banned, same-sex marriage. The judges of the Ninth Circuit, where the case is pending, have allowed Proposition 8 to remain in effect while they mull how to proceed.
Lawyers on both sides in both cases will present arguments about the role of Romer. Same-sex marriage proponents will seek to convince the high court that a broad reading of Romer should guide the rulings - in other words, that the decision should apply beyond the facts of the Colorado case. Opponents of same-sex marriage will argue for a narrow interpretation, saying the issues at stake in the Proposition 8 and DOMA cases are different from those of Romer.
When considering Romer, the Supreme Court found the Colorado constitutional amendment to be extremely broad and unjustified because it took away even the most basic protections for homosexuals. "That's not the case with marriage," said Dale Schowengerdt, a lawyer with the Alliance Defense Fund, which has supported the prohibition on same-sex marriage in California.
THE STATES' RIGHTS ARGUMENT
The reasoning of Romer is not the only factor here. The First Circuit, in its ruling, also broke ground by weaving the issue of states' rights into its equal protection analysis.
In its ruling last week the three-judge First Circuit panel found that because DOMA intrudes on states' traditional right to regulate marriages, the law deserved greater skepticism from the court. States' rights entered as an issue when the state of Massachusetts filed its own challenge to DOMA and the state's case was consolidated with a separate suit brought by seven married same-sex couples and three widowers on appeal.
Now the same-sex couples fighting the law hope that argument will resonate with the more conservative Supreme Court justices - who typically are sympathetic to states' rights arguments - and help them win the case.
"The federalism aspect of the decision makes it a stronger case to bring some conservatives along," said Paul Smith, a lawyer for the same-sex couples.
The Supreme Court has become increasingly concerned with states' rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states' rights.
The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law's central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn't have to recognize same-sex marriages performed in other states.
While the focus on states' rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.
The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.
He points out that 31 states have passed constitutional amendments defining marriage as between a man and a woman. "At the end of the day, federalism helps proponents of traditional marriage," said Schowengerdt.
(Reporting By Terry Baynes and Rebecca Hamilton; Editing by Douglas Royalty)