Today's decision from the Ninth Circuit ruling that Prop 8 is unconstitutional because it violates the Equal Protection Clause, even under a rational basis test, is terrific. Why do I love it? Let me count the ways.
Its narrow rationale gives anti-gay advocates a much smaller target to try to hit. As I had hoped for (over and over again), the court wrote this opinion so that it applies only to California. Only in California did a state supreme court rule that same-sex couples have a state constitutional right to marry, only to have that right taken away by voters. From the decision:
Whether under the Constitution same-sex couples may ever be denied the right to marry . . . is an important and highly controversial question. . . . We need not and do not answer this broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation…
[T]he Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason…Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place…The action of changing something suggests a more deliberate [invidious] purpose than does the inaction of leaving it as it is.
This reasoning dramatically lowers the stakes in the Perry litigation, and leaves for another day the broader constitutional question of whether, regardless of a prior state court ruling, same-sex couples have a federal constitutional right to marry in every state.
The absence of a decision on the big question greatly increases the possibility that the Supreme Court will not grant cert. I can imagine, for instance, that Chief Justice Roberts might conclude that gay marriage is precisely the kind of issue best avoided unless absolutely necessary and therefore might vote no on a cert petition, leaving conservative Justices a vote short of the four needed for the Court to take a case. Contrary to what many in the press are saying, it is quite possible – not certain, but possible – that the Supreme Court will never hear arguments in this case.
Did someone mention Romer? Virtually the only major precedent cited in Judge Reinhardt's opinion is Romer v. Evans, the 1996 opinion of the Supreme Court written by Justice Kennedy, the key swing vote on the Court. If the Supreme Court does end up considering the merits in this case, Reinhardt's opinion positions the case as a referendum on Romer, saying in a lot of different ways that Proposition 8 sure looks a lot like Amendment 2 (the Colorado provision invalidated in Romer). Even the cadence of the Perry decision sounds like Romer. Of course, Justice Kennedy could decide that this opinion takes what he wrote in that case too far, but I can't imagine a better framing for increasing the likelihood that Kennedy would be willing to affirm. [Alas, if only Justice O'Connor were still on the Court, a good outcome would be so much more likely.]
Did no one mention Lawrence? If Romer v. Evans is all over the Perry decision, the precedent notable for its absence is Lawrence v. Texas, the 2003 Supreme Court decision (also written by Justice Kennedy) holding that sodomy laws violate the individual's liberty interest in engaging in sexual conduct (private, adult, consensual, non-commercial) without interference by the state. Relying on Lawrence would have taken the Ninth Circuit back down the rocky road of determining whether that decision can be applied to invalidate restrictions that are less severe than criminal laws. LGBT rights advocates have not been terribly successful in using Lawrence as the basis for broadening the scope of the liberty interest so that it bars laws that burden (rather than criminalize) intimate relationships; this pair of judges decided not to go there.
Time is on our side. Needless to say, the defenders of Prop 8 have not chatted with me about what they plan to do next. But if they seek and obtain en banc review, this case will remain in the Ninth Circuit for quite a while more – let's say a year. (It is already almost three years since it was filed.) Then they seek review in the Supreme Court of whatever the en banc court declares. By that time, it is not crazy to imagine that there could be four or so more states that have adopted equal marriage laws, all by majoritarian means. It's also not crazy to imagine that there might have been an alteration of who is on the Supreme Court. There are way too many variables and possibilities to try to predict an outcome. But the picture for advocates of same-sex marriage is only going to get brighter.