The Court of Appeals for the Ninth Circuit has, once again, put the marriage dreams of California’s lesbian and gay couples on hold—at least until December, when it promises to hear the appeal from Judge Walker’s decision in Perry v. Schwarzenegger, which struck down California’s Prop 8. That’s a decision that deserves all the praise that it has been getting, offering the appeals court a smorgasbord of careful reasoning supporting equal marriage from which to pick as it writes its own decision. Walker’s decision succinctly identifies the arguments against equal marriage and examines the evidence to reveal the opposition’s intellectual and practical hollowness. And yet Walker’s opinion made me sick with worry—precisely because it is written so broadly that it seems to invite the Supreme Court to weigh in.
At Perry’s inception, celebrity attorneys David Boies and Ted Olson, appeared to be aiming for a decision that, like Loving v. Virginia, would swing open marriage’s doors all across the country, rather than simply in California. And Judge Walker’s decision does offer all the tools needed for such a comprehensive ruling. But it’s far too early for that. The Supreme Court doesn’t like to get too far ahead of the country on social justice issues; it prefers to wait until most states have come to some agreement, and then it orders the laggards to get in line. A broad loss at the Supreme Court could make it harder to bring winning federal cases later. And a too-sweeping SCOTUS win—one that required every state to extend marriage rights to same-sex pairs—would almost surely trigger a panicky federal marriage amendment, which would mean an exhausting and ugly fight in the thirty-eight states that currently have same-sex marriage bans on their books, and could conceivably be ratified. A recent CNN poll may have found that 52 percent of Americans think that same-sex couples have the constitutional right to marry—but those supporters are not spread evenly throughout the states. In Alabama, for instance, only 23 percent do.
That’s why LGBT legal advocates were privately appalled when Perry was filed. LGBT legal groups have long filed marriage lawsuits based only on state constitutions, so that the decisions could not be appealed to federal courts. They picked states where LGBT forces had already won legislative and court victories and a statewide organizing structure was ready to respond to any backlash. These were states with either no voter referendum process for rolling back a court win, or a slow and complicated one—so that citizens couldn’t vote on same-sex marriages until they had seen firsthand how little had changed once same-sex couples began to marry. Moral panic can be calmed by reality, but it takes time, organizing, and investment.
The problem: the moral panic hit states that didn’t recognize marriage, as well, and LGBT advocates in states that hadn’t recognized marriage weren’t ready to fight the DOMA statutes and amendments that came in the wake of victories in Vermont and Massachusetts. But funders and organizers are now investing in key public opinion and legislative campaigns across the country. In a few more years, a majority of American states will have equal marriage laws. Then it will be time to bring in the Supreme Court. (Evan Wolfson, director of the national group Freedom to Marry, believes that by 2020, the entire nation will be marrying same-sex pairs.) Boies and Olson stepped into the ring early, wanting to Win Because It Is Right. They ran a brilliant trial and won in a San Francisco federal district court. But what will happen on appeal, in Congress, and in other states?
After a few days of talking with a number of LGBT advocates, I’ve been reassured, on several counts. First, the lawyers all tell me that, contrary to the common wisdom, Perry isn’t necessarily on a fast track to the Supreme Court. It could stop short at the Ninth Circuit on a number of grounds.