The court challenge to California’s ban on gay marriage has made me nervous since it began. The case, which the Supreme Court will hear at the end of this month, makes the argument that banning gay marriage violates the Constitution’s guarantee of equal protection under the law, full stop. Amen to that. But in a world in which 41 states still ban gay marriage, it was asking a lot of the courts—and especially of Justice Anthony Kennedy, the oh-so-sought-after swing justice—to award gay couples the right to marry across the country. With polls quickly shifting in the direction of gay rights, why turn to the least democratic method of social change? And it bothered me that this challenge came not from seasoned gay-rights lawyers, but from two superstars of the bar, David Boies and Ted Olson, who swooped in on their own.
But a funny thing happened on the way to the Supreme Court: The case against gay marriage fell apart. The first holes appeared during the trial in 2010, which featured experts called in to testify in support of Prop 8 fleeing or recanting. And now this legal position is in such tatters that a group of more than 100 conservatives filed a friend-of-the-court brief that baldly states that there is no “legitimate, fact-based justification for excluding same-sex couples from civil marriage.” The conservatives, who include past and present Republican officials, say that “over the past two decades,” they “have seen each argument against same-sex marriage discredited by social science, rejected by courts, and undermined by their own experiences with committed same-sex couples.”
This is so true. And it should stiffen Kennedy’s spine. So should the argument conservatives put forward in their brief, which after stating their fealty to judicial restraint—let the legislators and the voters decide—carves out a worthy exception to the rule. “It is precisely at moments like this—when discriminatory laws appear to reflect unexamined, unfounded, or unwarranted assumptions rather than facts and evidence, and the rights of one group of citizens hang in the balance—that this court’s intervention is most needed.”
I finished reading and felt a lot more optimistic about the outcome of Hollingsworth v. Perry, as the case is called. I don’t think the court will take the giant step of ordering up gay marriage for the entire country. In fact, I think it shouldn’t. This one is a winner in the polls: Let’s let it move through the country gradually, because that’s the most enduring, least divisive way to make change. But there are a couple of good medium-sized steps the court can easily choose. Either way, ever since the court agreed to hear this case, there’s less reason to fear there’s a majority for doing damage to gay rights.
About those medium-sized steps: The Department of Justice laid them out in its own brief last week, which was historic because the Obama administration didn’t have to take a position in the case but opted to make a strong stand for gay rights. One possibility is for the court to treat California differently from every other state because it legalized gay marriage in May 2008, granted licenses to 18,000 gay couples, and then took it all away when Proposition 8 passed that November. That is the logic the U.S. Court of Appeals for the Ninth Circuit adopted in upholding the trial court’s ruling against Prop 8. It’s the safest political ground to stand on: As David Savage points out in the Los Angeles Times, “California voters, by a nearly 2-1 margin, now approve of allowing same-sex couples to marry.” Yes, this case is supposed to be about constitutional law, not public opinion, but when the Supreme Court faces contested social questions like this one, the rest of us matter.
A ruling that simply struck down Prop 8 would be a real victory: It would be the beginning of the end of state bans on gay marriage, and would eventually topple the entire sorry edifice of the federal Defense of Marriage Act (which faces an incremental challenge that the court will also hear at the end of the month). And if the Supreme Court adopts the Justice Department’s approach to applying the standard of heightened scrutiny, the ruling could have implications for other important gay-rights efforts, for example the fight against discrimination in the workplace and in schools. Heightened scrutiny is the test that courts apply in sex discrimination cases: It means that the government must have a very good reason to enact and enforce a law that treats one group differently, not just a plausible one. The Supreme Court has never held a law that discriminates on the basis of sexual orientation to that standard, and it would be a big deal all across the country, in suits brought by people who were fired or mistreated for being gay, if it did so in Perry.
There’s another possibility for a medium-sized happy ending, which New York University law professor Kenji Yoshino laid out in December and which the Justice Department has now embraced. This one is called the “eight-state solution.” The idea here is that California isn’t entirely on its own: It’s like the eight other states that have granted full domestic partnership rights to gay couples, denying them the benefit of marriage in name only. And that’s not OK, constitutionally speaking, because there’s no reason for it—once you’ve approved everything but marriage, you must grant the whole shebang.
There’s something strange about this argument: It dings the states that have actually done a fair amount for gay couples while leaving the ones that have done nothing alone. But politically speaking, it’s another potential winner. Four of the states in this category—Delaware, Illinois, and Oregon, along with California itself, in the hands of a Democratic governor—have actually asked the court to strike down Prop 8, “making an argument that would, if accepted, appear to seal the fate of their own laws as well,” as Marty Lederman points out. That would leave just Hawaii, Nevada, New Jersey, and Rhode Island to take this medicine without asking for it, and those aren’t places where the backlash looks bad.
Whatever option Justice Kennedy chooses for the court—and I really have no doubt he’ll be the one deciding—I hope he harks back to his own 2001 opinion in a case about disability rights, which the Justice Department cites. Here are Kennedy’s opening lines: “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves.” As the country shifts toward accepting gay people as full and equal citizens in every way, it’s both kind and wise to give the stragglers, who often are abiding by religious traditions, the benefit of the doubt. We can hope they lose in court without hoping they lose themselves.