July 2, 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. Friday, Bill Santagata provided his thoughts.
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 Adam Bonin
I’ll be brief, because there’s only one new thought I want to interject here. Since this suit was initiated I thought it was a straightforward application of the Moreno/City of Cleburne/Romer line of cases striking down statutes passed with no basis other than animus against a politically unpopular group. While admirable, I believed Judge Walker went further than he needed to in the district court decision, and was gratified to see the Ninth Circuit stick to the narrower, more-defensible-right-now-before-this-Court holding that there was no rational basis for a state to take way the label “marriage” and only the label, not the rights from same-sex couples. As Judge Reinhardt wrote:
It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.
I’m not afraid of taking this case to the Supreme Court because it’s so in Justice Kennedy’s wheelhouse, and I don’t believe that the Court would use this as an opportunity to go broader and declare a national right to marriage equality. So there’s nothing to gain substantively here through the Supreme Court which wouldn’t be in place with a cert denial, and obviously a cert denial would kill Prop 8 sooner. Here’s one more good reason against having the Court take the case: the Chief Justice of the United States.
We’ve seen this week what a restrained judicial actor he can be – or, what a cagey political operator. YMMV. Either way, I don’t like the idea of having both this case and the DOMA case from the First Circuit being argued in early 2013, which is the way I believe the schedule would go, and the simultaneous nature of the two cases allowing John Roberts to play Judicial Goldilocks. See, on the one hand he can say “Prop 8 is bad, but we can strike it down based on its unique circumstances” to prove he’s not a bigot, but still find some “rational” basis for defending the federal government’s refusal to grant equal benefits to same-sex couples even when their home states have recognized their marriages, thus withholding the broader prize. If the Court has to address that second question anyway – and it does – then I don’t want to afford him any leeway with the jurisprudential equivalent of “but some of my best decisions are equality-friendly!” Make him answer the question once, and I think he’s more likely to come down on the side of progress and history.
Adam Bonin is a solo practitioner in Philadelphia, where he concentrates on the field of political law, and a contributing writer to the Daily Kos website, where he writes for the front page on legal issues.