A Losing Proposition

Why gay-rights leaders don’t want their big Prop 8 victory to go to the Supreme Court.

Opponents of Proposition 8.
Gay-rights activists celebrated a win in the battle against California’s Proposition 8, but many would rather see a different gay-marriage case reach the Supreme Court first

Photograph by Kevork Djansezian/Getty Images.

Strange as it may seem in the wake of the street parties celebrating Tuesday’s ruling by the 9th Circuit Court of Appeals invalidating California’s Proposition 8, there was a time when gay-rights advocates feared this day would come.

Leaders in the movement had spent years crafting what they felt was the perfect challenge to a different law restricting gay rights: the federal Defense of Marriage Act, which does not recognize same-sex marriages. Anti-DOMA suits working their way through the courts in Massachusetts and other states were carefully constructed to serve as the first major test cases of gay-marriage rights at the Supreme Court level. The theory behind those challenges was always that they are bold enough to make a difference, but modest enough to carry the day, even in a court that leans right. All they ask is that the federal government respect states’ marriage laws rather than imposing its own.

The lawsuit challenging Prop 8, filed in 2009 by Ted Olson and David Boies, upset those well-laid plans. It had a more ambitious aim than the anti-DOMA suits, seeking a ruling that would affirm a constitutional right to gay marriage for all.

The fear among the gay-rights establishment has been that the high-octane Prop 8 challenge would reach the Supreme Court first—and that the court would find it too radical, dealing a blow that would set the movement back years. Or, in the best case, that the court would embrace a constitutional right to gay marriage—but the nation’s conservatives would in turn renew their push for a federal marriage amendment, setting off a nasty, drawn-out political fight nationwide.

More recently, marriage-equality advocates like E.J. Graff, a journalist and fellow at Brandeis University, have learned to stop worrying and love the Prop 8 lawsuit. Why? For one thing, the specter of a public backlash is less intimidating because polls now show a majority of Americans supports gay marriage rights. People who have been fighting for gay marriage from the days when it was a fringe issue now perceive that time is on their side: The question is not whether the country will accept same-sex marriage, but when.

Second, Graff and others rightly anticipated that any ruling on Prop 8 by the 9th Circuit would sidestep the grander ambitions of the Boies/Olson challenge and instead take a sufficiently narrow approach to avoid triggering a Supreme Court rebuke. As Slate’s Dahlia Lithwick explained Tuesday, that’s exactly what happened. While there was plenty of high-flown language in Stephen Reinhardt’s majority opinion striking down Prop 8, the decision itself appeared tailor-made to appeal to the Supreme Court’s swing voter, Anthony Kennedy. Much of the reasoning rested on two opinions that Kennedy himself wrote: Lawrence v. Texas, which struck down Texas’ sodomy law, and especially Romer v. Evans, which nullified an anti-gay rights amendment in Colorado on the grounds that the state lacked a rational basis for the law.

All of which leaves gay-rights advocates free to celebrate the Prop 8 decision as a triumph, albeit a limited one. But though movement leaders won’t say it publicly, many are still rooting against Boies and Olson making it to the Supreme Court before the DOMA challenges.

Why? It’s still a risk-reward calculation. The most likely positive outcome, should the 9th Circuit’s Prop 8 decision receive a review from the high court, is that the justices uphold the 9th Circuit’s extremely narrow ruling. While that would be a moral victory for the movement, the practical outcome would be the same as if the Supreme Court declined to hear the case at all: gay Californians would regain the right to marry, with no impact anywhere else in the country, unless states first grant marriage equality rights and then withdraw them.

Yet the Supreme Court is not obliged to follow the 9th Circuit’s logic. It could opt to reopen the larger question of a constitutional right to gay marriage. And if it did, odds are that it would not be in favor of establishing such a right. Not this court, anyway.

The DOMA cases, by contrast, don’t broach the deeper civil rights question. Instead, they frame the question in terms of a different set of rights: states’ rights. The question before the court is whether the federal government overstepped its authority by denying states the right—a right they have always enjoyed—to create their own definitions of marriage. It’s a 10th Amendment argument that Anthony Kennedy could easily get behind, and leaves thorny issues of privacy and fundamental individual rights for another day.

And ironically, given the deliberate modesty of the DOMA challenges, the potential rewards of a DOMA ruling by the Supreme Court now exceed those that could realistically be expected in a Prop 8 ruling. Sure, DOMA has already been weakened by the Obama administration’s announcement last year that its attorneys would no longer defend it in federal court. But it’s still the law and it affects residents of all states with gay marriage laws—not just California—by denying federal recognition of those unions. A DOMA win would be national in scope. And it would keep the federal government on the sidelines as more and more states take their own stands on the issue. Just Wednesday, Washington’s legislature put the state on the verge of becoming the nation’s seventh to recognize same-sex marriages.

Advocates like Evan Wolfson, the father of the same-sex marriage movement, nevertheless insist they’re not losing sleep over the prospect of Prop 8 reaching the high court first. “We can’t control which case, if any, of the current cases is going to get to the Supreme Court, or who might be on the court when it gets there,” Wolfson said. “What we can control is that we do everything in our power to maximize our chances of winning.”

That’s true. Still, he and others who have fought hard to overturn DOMA had to have been at least a little relieved that the 9th Circuit didn’t go out of its way to make a splash with Tuesday’s decision. The most liberal of the country’s federal appeals court, the 9th is also the most frequently overruled by the Supreme Court. (The main DOMA challenges are coming out of the 1st Circuit.) Even David Boies, the more liberal of the two lawyers arguing against Proposition 8, acknowledged in a post-victory conference call that the narrow ruling in California could make the Supreme Court less likely to take the case.

Interestingly, his fellow counselor, Olson—a Republican whom a few conspiracy-minded liberals once suspected of trying to sabotage the gay-marriage cause by fighting Prop 8—wasn’t quite on the same page. The 9th Circuit’s decision, he asserted, “ringingly reaffirmed the right to equality, the fundamental right to marriage and the fact that it cannot be denied to citizens on the basis of their sexual orientation or the basis of their sex.”

In theory, anyone in the gay rights movement would endorse those sentiments. It’s just that they’re wary of asking Anthony Kennedy if he does too.