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.
For instance, the Ninth Circuit might uphold Perry but narrowly, applying its ruling to only to California, based on its unique facts. The Golden State legislature has voted twice to gender-neutralize marriage; the state’s top court has ruled that, under California’s constitution, marriage should be open to same-sex pairs. (And in the six months after that ruling, roughly 18,000 same-sex couples were granted marriage licenses, putting a lot of “facts on the ground.”) And Judge Walker carefully establishes, based on evidence offered at trial, that the Prop 8 campaign was religiously motivated and explicitly hostile to lesbians and gay men, so the Ninth Circuit could rule that Prop 8 campaign was too close to Colorado’s antigay Amendment 2 in Romer v. Evans—and that voters can’t overrule their top court and legislature based only on animus. Or it could rule that the state’s top court must be the final authority within that state on such essential questions as sex discrimination, minority rights, and due process—although other states can make different decisions. Or it could rule that since California has a domestic partnership scheme that is marriage in everything but name (a big distinction, but that’s another discussion), voters may not rule marriage out only to tell lesbians and gay men that they’re not as good as their heterosexual siblings.
Similarly, the Ninth Circuit could uphold Prop 8 and reject same-sex marriage, on any of the points above—but in a way that confines its Plessy v. Ferguson ruling to California.
Given a narrow ruling, the Supreme Court might decide not to touch the case at all. There’s no “circuit split,” no differing opinions from the appeals courts, to reconcile. Nor do a significant majority of either states or American citizens agree about what the result should be, as was the case in Lawrence v. Texas, for instance. Four justices must vote to take a case. The more liberal justices would presumably prefer to buy time while public support continues to build. And while Scalia and Alito may be itching to swat back same-sex marriage, Roberts could decide that, institutionally speaking, the Supreme Court would be better off ducking the question as long as possible.
Or while the appeals are underway, voters might overturn Prop 8 themselves—taking the case off the Supreme Court’s docket entirely. Marc Solomon, marriage director at EQCA (Equality California), told me that trained volunteers and paid staff have had nearly a million conversations with voters since 2008, concentrating particularly in Latino and African American communities. He told me that just over 50 percent of California voters now tell pollsters they support same-sex couples’ right to marry—and he believes that majority will be much stronger by 2012, when EQCA is considering putting repeal on the ballot.
Even if the Supreme Court does take Perry, its decision could easily be narrow, on any of the grounds above, or on some other point. Historically the Supreme Court has shied away from touching states’ marriage laws, since the Constitution assigns marriage and family law to the states. None of my sources believe that Justice Kennedy, expected to be the swing vote, would sign a broad opinion in either direction. A Perry decision could conceivably stand for the idea that each state can define marriage for itself.
That would leave the Supreme Court free to rule the right way in the two pointedly low-profile and more precisely targeted federal cases coming out of Massachusetts: Gill v. Office of Personnel Management and Commonwealth of Mass. v. Health and Human Services, which take aim at Section 3 of the 1996 federal Defense of Marriage Act, which says that the US government will not recognize any state’s same-sex marriages for such federal issues as immigration, taxes, Social Security, or federal pensions. These two cases, argued respectively by GLAD, New England’s LGBT legal group, and the Massachusetts attorney general’s office, don’t argue that same-sex couples deserve the freedom to marry. They argue, rather, that the federal government can’t pick and choose which of a state’s marriages it prefers—which is does when it recognizes all the marriage licenses issued by Colorado, say, but not all those issued by Massachusetts. Such a technical decision would be far less likely to trigger backlash, applying only to existing marriages in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia—where citizens already shrug at their lesbian and gay neighbors’ marriages. And yet it would be tremendously meaningful, turning married same-sex couples into full citizens not just in their home states but in the eyes of the federal government. These cases have already won in federal district court; if the First Circuit takes them up soon, Gill and Commonwealth could conceivably be heard before the Ninth Circuit rules on Perry.
By the time the Supreme Court hears a marriage case—whether Gill, Perry, or some other case—more states will be marrying same-sex pairs. Other states that could soon enact equal marriage laws, either by legislature or ballot measure, include Maine, Maryland, Minnesota, New York, Oregon, Rhode Island and Washington. In other words, despite the fact that Boies and Olson and now Judge Walker have been dominating the news, the larger campaign for marriage equality has many moving parts. Evan Wolfson told me (as he tells everyone ) that whether you favor legislative, judicial or ballot-box victories, the work and the strategy are the same. Equal marriage rights can only be held by persuading three audiences—legislators, judges and voters—that equal marriage is just, that it helps some and threatens no one. The Supreme Court will neither sink nor save us; the truly final court is the court of public opinion. And there we are steadily winning.