June 29, 2012
This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with 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? Why?” Participants were asked to respond in 700 words or less.
Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Thursday, our own Vienna Hagen aka AnonyGrl sent us her take.
If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!
By Bill Santagata
“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? Why?”
The answer is yes because the odds are on our side. Not only do we have Justice Kennedy’s pro-gay history as the swing vote on the court, but the number of possible avenues are weighted in our favor. Most discussion of Perry v. Brown hinges on whether or not the Supreme Court will affirm the 9th Circuit decision. In reality, there may be as many as four possible outcomes given the various weaknesses (summarized by Ari Ezra Waldman in his guest article) in the narrow appellate ruling based principally on Romer v. Evans. These possibilities are:
1. The Supreme Court affirms the 9th Circuit decision as-is, thus broadening the scope of Romer in a way that sets binding precedent throughout the entire country. This could positively affect cases against other anti-gay laws that might spring up (like “Don’t say gay” bills).
2. The Supreme Court reverses the 9th Circuit decision, finding Proposition 8 to be constitutional. This would be devastating and it might definitively establish that rational basis review is the proper standard of scrutiny for anti-gay laws.
3. The Supreme Court rejects the 9th Circuit decision as an over-reach of Romer, and remands to the appellate court to review the original finding of the District Court (that same-sex couples have a constitutional right to marry). It would be unusual for the Supreme Court to jump right in and answer this question itself before first getting an opinion from the Circuit Court, but this would be spectacular news as it would show the Supreme Court is willing to rule on this issue favorably. The conservative anti-gay justices would probably not vote for such an option, choosing scenario #2 instead, meaning that if the Supreme Court were to take this route, it would probably mean that they are ready to declare a right to marry for same-sex couples.
4. The Supreme Court affirms the judgement of the 9th Circuit but on different grounds. The Court holds that it is not the “taking away of an existing right” that is unconstitutional, but rather the separate-but-equal system it left in place. Thus it affirms most of the logic of the 9th Circuit, that a symbolic in-name-only distinction advances no rational basis, but broadens it to include all other states that have similar separate-but-equal systems. There is a legal basis for this. Romer v. Evans was not decided merely because it took away existing anti-discrimination protections, but rather the scope of the protections implicated. The Court wrote:
“Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Colo. Const., Art. II, §30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits ****all legislative, executive or judicial action at any level of state or local government designed to protect the named class****, a class we shall refer to as homosexual persons or gays and lesbians.”
While the “taking away” is inherent in Proposition 8, the scope of the damage it does to the body of gay rights in California does not align with the finding in Romer. Proposition 8 does not rescind **all** state actions to protect the named class (gays and lesbians) as homosexuals still have all the state-level rights of marriage intact.
This result would have both positive and negative consequences: we will win more marriage equality states immediately but no state can make the stepping stone of civil unions, which while undignified, gives practical benefits to same-sex couples while being much less controversial.
If find this final reasoning to make the most sense, legally. The 9th Circuit decision is too narrow and too dependent on Romer to be effective, yet the responsibility of judicial restraint makes this case a poor opportunity to declare a universal right-to-marry. If the Supreme Court were to take this case, my bets would be on Scenarios 1 as the likely outcome with 4 a very real possibility. I do not see Justice Kennedy voting against one of these two narrower rulings. And in any event, it is worth remembering that there is no Supreme Court ruling that cannot be overturned.
Bill Santagata is an M.A. candidate in French literature at New York University in Paris with an interest in Equal Protection and Establishment Clause case law.