It's inevitable the nine will be hearing a marriage equality case soon. California's Proposition 8, an amendment to the California state Constitution revoking the right of same-sex couples to marry, was passed by popular referendum in November 2008. It has been struck down twice in federal court as unconstitutional, both in trial and on appeal. On June 5, the Ninth Circuit Federal Court of Appeals denied a motion for a second appeal before a panel of 11 justices. This started the clock a 90-day window for Prop 8 proponents to petition the Supreme Court for a writ of certiorari to argue the case at their final venue.
Although they have yet to file the paperwork, proponents have been unequivocal in their intention to do so. Alliance Defense Fund attorney Charles Cooper told Metro Weekly's Chris Geidner:
"We're pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit's decision."The question becomes, is it preferable for the LGBT movement if the court grants their request? Or denies it?
The excitement surrounding the Prop 8 case was all about the potential for the case to ultimately affirm a fundamental right to marry to same-sex couples across the entire United States. And it began with that promise, for sure. This was the force driving American Foundation for Equal Rights and co-counsels Ted Olsen and David Boies.
But a funny thing happened along the way; that wasn't what the appeals court found.
The appellate judges managed to sidestep the key question: "Does the Constitution endow LGBT couples with a fundamental right to marriage?" They took pains to make explicit that isn't what they are saying. From the ruling:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right has that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. ... We need not and do not answer the broader question in this case, however...The Prop 8 Appeals ruling essentially applies only to the state of California, and only to this particular statute having been enacted under these unique circumstances (having attained the right to marry, then having it taken away by popular vote). These are not circumstances that have been repeated in other states.
Broadly, if the Supreme Court takes the case, the nine justices will have the opportunity to reject the appeals ruling, agree with the appeals ruling, or agree and expand its scope.
Their ruling would need to be more expansive to strike down the 30-odd state gay marriage bans and deliver the universal right to marriage equality to America. This would be the grand prize and, of course, the entire impetus for arguing it before the Supreme Court of the United States. But, I am convinced the chances that the Supreme Court will make such an expansion are, at best, quite remote.
Convincing the Court to expand the appeals ruling outside the bounds of California and beyond this specific statute and specific circumstances will be the task of Olsen and Boies, should they get the chance. And I have complete confidence they are the finest team to make that argument.
But all judges are trained and even obliged by judicial restraint to deliver as narrow a ruling as possible. We don't like it in this case, but it is, in general, a wise guiding principle of jurisprudence (at least we appreciate it for the likes of Justice Scalia).
The nine have been handed on a silver platter a perfect opportunity to say, "Yes, the Ninth got it right, the gays in California can marry. The rest of you, we're really not sure. Fiddle-dee-dee, we'll think about that tomorrow." And given the very tiny, incremental steps we've seen in the federal LGBT court cases, the over-abundance of caution, I think they will probably leap at that opportunity.
In fact, on Thursday, civil libertarians lamented that the Supreme Court ducked answering key First Amendment questions raised in two cases: FCC v. Fox and Knox v. SEIU. This is what they do.
Should they duck the fundamental question of whether same-sex marriage is a right, then for a year or more of waiting, the LGBT community won't have gained any real legal ground that hasn't already been won. (Granted, it may clear up some of the confusion surrounding appropriate scrutiny levels that apply to the LGBT discrimination. But then again, it may not.)
So ultimately, when I assess the risks (LGBT community loses it all, a Hardwick-level wipeout) and the costs (yet another year plus wait) against the likelihood of snagging the grand prize (universal right to marriage equality affirmed), I find myself thinking it might be for the best if the Supreme Court denies the petition for a writ of certiorari on this case. Sometimes it's okay to win on points, even if you hoped for a knockout.
And I think the chances are perhaps better than many are predicting that the Court may pass. It's possible the the justices may decide this dispute over a California law has been adequately settled on trial and appeal, and there is no pressing national interest that compels the SCOTUS to hear it. (Countless LGBT couples feel differently, obviously, but the powers that be have rarely been shy about asking gays to wait and wait.)
The upside of the SCOTUS passing is this whole ugly episode finally will be over, and marriage could resume in California, soon, perhaps even before Washington, Maryland, Maine and Minnesota voters decide similar questions on their ballots. The population of Americans with access to marriage equality would explode overnight. The Lambda Legal Nevada case in federal court still holds the potential to be the gay Loving v. Virginia. And there are still more than 30 other state constitutional bans LGBT legal eagles can start taking a swing at. They can build on what has been learned and where we've gained.
The Defense of Marriage Act challenges, which are coming to a full boil, most notably the Gill case in the First Circuit, seem a preferable choice to arrive at the Supreme Court first.
Until we get around to challenging Section 2 of DOMA, these cases also sidestep the question of a fundamental, constitutional right to same-sex marriage. This absolves the justices of the political hot potato of sending an edict to say, Alabama, that they must start letting the gays get married. This would make a favorable ruling, perhaps, a little more likely.
What the DOMA cases do offer is the opportunity to present issues of legalities of same-sex marriage to the justices. We know many of them have not encountered this topic in their professional capacity. They will get a window into the lives of LGBT people that we can't presume they have ever had. Familiarity with actual gay people is one of the highest indicators a person will be LGBT supportive.
And marriage equality opponents' arguments vary little whether they are defending DOMA or Prop 8. If they can be shredded on DOMA, we can return to shred them again. And we will.
Whatever popular opinions circulate on the wisdom or folly of the Court granting or denying a Prop 8 hearing, they are likely to have little, if any, persuasive effect on the Nine's ultimate decision. For now, the task before marriage equality supporters seems clear: keep doing what you're doing. Tell your stories. We are winning.
This piece will be featured in a week-long legal symposium exploring issues surrounding the question: "Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court?" The series begins Monday at 12 PM ET at Prop 8 Trial Tracker.
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