Why Perry might NOT go to the Supreme Court

by on August 8, 2010  •  In Marriage, Supreme Court

The conventional wisdom that has emerged among journalists is that Perry v. Schwarzenegger is on a glide path to the Supreme Court — yes it has to go through the Ninth Circuit first, but drama and quite possibly disaster for lgbt rights advocates inevitably loom at One First Street.

Maybe. Maybe not.

While the Walker opinion offers a strong analysis of the unconstitutionality of barring same-sex marriage that could (and should) be persuasive to other judges, it applies only to Prop 8, not to any other state's law banning marriage. Some of the findings of fact reach more broadly, but many are specific to the process by which Prop 8 was enacted.

The logical conclusion from Walker's opinion is that all anti-gay marriage laws are based to some extent on animus, and the decision provides a great foundation for challenges to other such laws. But it is at least possible that another case, brought in another state, could produce a different factual record or different legal arguments. 

In addition to a particular set of facts, there are legal arguments against Prop 8 that are specific to it and that lgbt rights groups have stressed in their district court amicus brief.

What this geographic limitation means is that the true scope of this decision will depend on how broadly the Ninth Circuit frames it on appeal. The Ninth Circuit could decide the case in a way that would make the narrowness of the holding  more apparent than it is from the face of the district court opinion.

Why is this important? A Court of Appeals opinion limited to Prop 8 – on both facts and law – would be much less likely to lead to Supreme Court review. This is one way the case may end at the Ninth Circuit.

Another way would be if the Court of Appeals accepts Plaintiffs' new argument that the Prop 8 proponents lack standing to appeal. If the Ninth Circuit agrees with Plaintiffs, it may not even reach the question of Prop 8's constitutionality. Of course, the Prop 8 proponents could then seek Supreme Court review on the standing decision. But it would be another easy way for the Supreme Court to duck a controversial issue.

Lastly, and especially if the standing question eats up time, perhaps the voters of California will repeal Prop 8 while the lawsuit is still pending in the judicial system.  This would be my own favorite outcome, not because I think it is improper for courts to uphold unpopular rights, but because the political message of popular repudiation of a bigoted law would be so much more powerful than even the most eloquent court decision.


3 Responses to Why Perry might NOT go to the Supreme Court

  1. bucky August 8, 2010 at 1:05 PM

    I agree with you. As per usual.

    Everyone thinks this is going to be a Supreme Court case, but they seem to forget that the SC gets to pick and choose which cases they hear.

    I think that it is very plausible that the SC will want to avoid this case and refuse to hear arguments.

  2. Evan August 9, 2010 at 2:47 PM

    I agree as well. In fact, I remember reading something that the SCOTUS may want more trial cases to tackle before they take it up. That ideas blends nicely with the concept that the 9th CC will rule narrowly. As other cases make their way through the judicial system, they’ll build a good history of case law, all of it built on Judge Walker’s ruling. SCOTUS doesn’t like going out on a limb. If there’s a large case history, then it’s easier on them to make a decision, particularly one that may be politically unfavorable.

  3. Mark G. August 10, 2010 at 2:13 PM

    Actually I was surprised that Judge Walker had not more narrowly decided the case. Olsen seemed to hand him the facts that ss marriages were legal and then taken away. California being one state where that factual has happened and could have been the basis for a very narrow ruling.

    But I think the 9th Circuit and the SCOTUS can avoid the whole debate right now by using the standing argument OR if no stay is put in place the two plaintiff couples can legally marry and also make the case moot.

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