What’s the Best Road to Equal Marriage Rights?

Superlawyers David Boies and Ted Olson like all the roads that lead to the Supreme Court.

Same sex wedding.

Barbara Tremblay (L) and Stacey Minondo wait on line to get married at the city clerk’s office in New York City

Photograph by Mario Tama/Getty Images.

Last week a three-judge panel of the 1st Circuit Court of Appeals found a central provision of the federal Defense of Marriage Act unconstitutional. This morning, the entire 9th Circuit Court of Appeals refused to disturb a ruling by a panel of that court that Proposition 8—California’s anti gay marriage initiative—also violated the Constitution. Both cases represent big wins for the gay rights movement. And both appeals now turn to the Supreme Court for ultimate answers. The two cases are on parallel tracks to get to the court next fall, to be briefed and argued next spring, and to be decided by next June. The question now becomes which appeal the court will hear, and why.

It’s important to emphasize that the two appeals raise different issues. The DOMA case out of Massachusetts challenged the federal law denying federal marriage benefits to gay couples. It doesn’t implicate the right to marry per se but how states define marriage, thereby affecting whether gay couples receive the same federal benefits as heterosexual couples. The Prop 8 case, on the other hand, was filed by opponents of the statewide referendum banning same-sex marriage. Judge Vaughn Walker struck that law down in 2010. It was then deemed unconstitutional on more limited grounds by a three-judge panel of the 9th Circuit Court of Appeals last winter. Both cases have been handcrafted to mirror the analysis in the Supreme Court’s 1996 decision in Romer v. Evans, authored by Justice Anthony Kennedy, which struck down a Colorado constitutional amendment that did away with state laws protecting homosexuals.

The DOMA case was always seen by insiders as the best shot at winning a critical fifth vote from Justice Anthony Kennedy at the Supreme Court. Conventional wisdom still holds that it the more likely vehicle for the court to decide these issues. As Will Oremus explained in Slate last winter, the DOMA cases were styled as states’ rights cases, precisely because states rights are a vastly more popular notion at the court than gay marriage. The Prop 8 challenge was always seen as a tougher sell, raising broader questions that would sweep in potentially all Americans. That calculus changed somewhat after Judge Stephen Reinhardt wrote the 9th Circuit panel opinion in such a narrow fashion as to apply only to the facts as they unfolded in California. But Reinhardt’s backbends didn’t necessarily make the appeal a more palatable choice for the court. Many legal analysts merely saw it as an attempt by the most liberal appeals court in the nation to craft a decision so lacking in melodrama that the court could avoid taking it up at all. (An alternate theory held that the Prop 8 case might be attractive to Justice Kennedy precisely because the court could limit its conclusions to California and leave the larger issues for another day. Or decade.)

The First Circuit decision in Gill was a rather reluctant offering, tethered to states’-rights claims that may prove appealing to at least one of the court’s conservatives—especially Anthony Kennedy—but unlikely to advance the original project of superlawyers David Boies and Ted Olson of making same-sex marriage a federal constitutional right. Judge Reinhardt had already done a version of that trick, back when he narrowed Judge Walker’s Prop 8 ruling to apply only to California, and only to cases that looked like Romer. As “bmaz” at EmptyWheel lays it out, “by having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide. While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.”

But as has been the case for years now, litigators in the trenches have learned to ask for what they can get, and not what they want, and at least some lawyers believed that what Boies and Olson received from Judge Walker—the promise of a fundamental right to gay marriage—was just too big an ask at the highest court in the land.

In other news, those who feared that Judge Randy Smith’s none-too-persuasive dissent to the Prop 8 decision would be beefed up by a scorching 80-page dissent at the 9th Circuit today have nothing to worry about now. Judge Diarmuid O’Scannlain’s dissent is a thin broth for proponents of California’s anti-gay initiative. In one of the strangest constitutional gotchas ever filed, O’Scannlain’s claim today is that President Obama’s recent statement of support for same-sex marriage came with the caveat that the Constitution “left this matter to the states,” to be conducted in “a respectful way.” In the dissenters’ view, Obama got worked by liberals who would make the right to marry the one you love a federal constitutional issue. As Garrett Epps notes here, that isn’t exactly a resounding defense of the alleged reasons behind state anti-gay marriage initiatives. It smacks just a little of that classic playground argument popularly known as “I’m telling mom.”

Today’s decision from the 9th Circuit allows Prop 8 supporters 90 days to decide whether to appeal to the Supreme Court, which they now appear inclined to do. The two lawyers for the plaintiffs, Boies and Olson, were very clear in a call with reporters this afternoon that they believe the court will take the case. (Olson said they “may” consider it and Boies said it was “probably likely.”) Neither of them appeared inclined to game which case has better odds of being taken and both implied that the court might well take both and docket them for the same day, with argument taking place next spring and a decision by next summer. Olson answered questions about whether the courts are truly best situated to make decisions about state policy by explaining that when individuals are turned away at a county register’s office, “the courts are the only way,” and that public opinion has shifted so dramatically in favor of equal marriage rights, even in the three years since this lawsuit was filed, that it makes the case much easier for proponents of gay marriage to argue now. As he put it, “The more the American people understand and think about and appreciate the issue of how much it matters to individuals to be allowed to live with equality and dignity, the more the public accepts it as the right of those individuals and as the right place for America to be.”

Boies and Olson were quick to note that while Gill and Perry arise in different contexts, the reasoning behind both is, as Boies put it, “essentially the same.” In each case, he explained, a history of discrimination against gay couples led to the harms caused. In each case he added, there was no truly reasonable rationale offered for the discriminatory measures. Both also clarified that while a victory on the narrow basis offered in the 9th Circuit would represent a “complete victory” for their clients, they’d be arguing for the whole package—fundamental rights to marry the one you love—at the Supreme Court as well.

It takes four justices to decide to hear a case, and that means that the years of national obsession over what Justice Kennedy might do now morphs into the eight other justices trying to decide which case to take based on what Justice Kennedy might do. I, for one, am grateful that the pressure is off the rest of us.

An old adage holds that you should ask and ye shall receive. Of course the older adage says lawyers shouldn’t ask a question to which they don’t already know the answer. The two Prop 8 lawyers are supremely confident on both fronts. The rest of us are no longer even sure what we are asking for.