July 3, 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. Monday, July 2, attorney Adam Bonin, front pager at Daily Kos on legal issues, gave 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 Nan Hunter
The question that frames this symposium – whether it would be better for LGBT equality if the Supreme Court grants certiorari in Perry v. Brown – has an obvious answer: only if we win. If we lose, it would be a major setback . So the real question is, what are the odds that we would win in the Supreme Court? And what would “winning” look like?
The only victory that seems likely to me is an affirmance of the Ninth Circuit’s ruling that Proposition 8 is unconstitutional on grounds that apply only to California. But we don’t need an opinion from the Supreme Court to achieve this result. That is why the best possible outcome would be a denial of certiorari, which would lead to the reinstatement of an injunction against enforcement of Proposition 8.
My biggest fear is that the Supreme Court will grant review in Perry. I would bet that Justices Scalia, Thomas and Alito are salivating over the chance to weigh in with all the reasons why Proposition 8 is a perfectly fine constitutional provision. I fear that Chief Justice Roberts and Justice Kennedy may conclude that because a federal court has struck down a state constitutional provision on federal law grounds, it is the duty of the Court to consider the merits. Only four votes are required to grant certiorari.
Should certiorari be granted, the conventional wisdom is that Justice Kennedy will essentially determine the outcome, and I see no reason to call that prediction into question. Although LGBT folks correctly associate Kennedy with the pro-gay outcomes in Romer and Lawrence, the Perry case will strike a different chord for him, implicating one of his strongest beliefs: the rights of states.
Justice Kennedy describes our system as one of “dual sovereignty,” which means that states have equal authority with the federal government to make law unless there is a direct conflict necessitating one national rule. Will he find that there is no rational basis for limiting marriage to different-sex partners? If the case turns on the particular context of California law, maybe. If the effect of such a ruling would be to throw out the laws of 40-plus states, I doubt it.
When Romer v. Evans was before the Court, it was framed as a challenge to a provision unique to Colorado. Lawrence v. Texas involved an archaic and extreme law that imposed criminal penalties, a law that a super majority of states had already eliminated by state court rulings or state legislative action. Perry v. Brown will come to the Court as a horse of a different color.
For one thing, although opinion polls on marriage are shifting, they are not shifting at an equal pace at the state level, and thus our “dual sovereignty” system is not yet reflecting the changes. The resounding enactment of a ban on gay marriage in North Carolina is only one example. Political scientist Greg Lewis estimates majority support for gay marriage exists in about 20 states, most of which have not equalized their laws. Polls this year show only 35 to 40 per cent support for same-sex marriage in major states such as Ohio, Pennsylvania and Florida. Hopefully, voters in one or more of the four states where marriage is on the November ballot will endorse equality, which will mark a breakthrough in the politics of gay marriage. But the margins are likely to be close.
While the Supreme Court is not driven by poll results, the Justices nonetheless are quite sensitive to preserving the Court’s legitimacy in the eyes of the public and avoiding sweeping decisions on hot-button cultural issues if possible. For the progressive Justices, the biggest concern about “getting ahead of the country” is likely to be the risk of major backlash.
For advocates of equal access to marriage, the primary goal should be to keep driving up the levels of public support. For this issue, in this phase of its development, the let-each-state-decide dynamic is essential because it provides the space for change to happen gradually. Incremental change increases the public comfort level because it sends the message that the nation will be allowed to adjust to this alteration of a major social institution at its own pace.
Everyone understands that allowing state variability is a kind of structural compromise in the American political system – necessary now to ensure enough popular support to prevent calls for something like a federal constitutional amendment barring gay marriage, even if grating to the principle of immediate and complete equality, under all law, state as well as federal. But it is a compromise that will pay off in the long term. And unless something happens to derail the progress happening now– something like a Supreme Court decision endorsing marriage inequality for example – the long term may turn out to be, by historical standards, remarkably short.
Nan Hunter is a Professor of Law at Georgetown University and co-author of a leading law school casebook – Sexuality, Gender and the Law. She blogs at hunter of justice.