Earlier today, I live-blogged the argument to a Ninth Circuit panel in Perry v. Schwarzenegger.
Now, with dinner and a ridiculously difficult swim behind me, and the kids in bed, here are some observations about what I heard (and saw in the judges’ faces) during the argument:
(1) The court seemed much more interested in the unique facts of California’s marriage equality/Prop 8 situation than in reaching a broad decision about whether the U.S. Constitution confers a right on same-sex couples to marry. Judges Hawkins and Reinhardt, especially, kept encouraging Ted Olson to take a big — but incomplete — victory, declaring Prop 8 to be unconstitutional, but avoiding the deeper question of whether the state can ever deprive its gay and lesbian citizens of the right to marry.
Here’s the path to doing so: In the 1996 Supreme Court case, Romer v. Evans, the Court struck down an amendment to the state’s constitution that effectively walled gays and lesbians off from any legal redress for discrimination. As Justice Ginsburg pointedly noted during argument, under the state’s argument, any LGBT state resident could be denied the right to borrow a book from the public library just because of sexual orientation, and would have no redress. This, the Court said, no state may do. It’s hard to find an action that strikes more directly at the heart of the equality principle, and Romer famously began with a quote from Justice Harlan’s eloquent dissent in Plessy v. Ferguson: “The Constitution neither knows nor tolerates classes among citizens.”
Reinhardt and Hawkins made ample use of Romer, strongly suggesting that Prop 8, by taking away a right that the state’s supreme court had already deemed fundamental (earlier that same year, 2008), created for LGBT citizens a second-class standing, by the name “domestic partnership.” And given that the domestic partnership confers all the rights of marriage but withholds the name, it’s hard to avoid the conclusion that the enactment is motivated by anything other than animus towards gay and lesbian couples.
There’s something paradoxical about this, of course (as I’ve noted in a law review article, The Short, Puzzling(?) Life of the Civil Union) — a state, such as California, that’s gone all the way up to marriage for gays and lesbians while withholding the word is, under this approach, more vulnerable to challenge than a state like, say, Florida, that has no state-wide protection for gays and lesbians. Indeed, Charles Cooper (attorney for the Prop 8 proponents) called this kind of analysis “perverse.” But it might carry the day, if the court finds that at least one of the Prop 8 defenders before it has standing. (See (3), below.)
(2) None of the substantive arguments in favor of Prop 8 appeared to have much traction with the court, except with Judge Smith. I’m not oversimplifying to say that the argument was really about procreation — particularly, accidental procreation — and little else. That’s all they had once the court wouldn’t stand for the argument that “the people” should get to decide to continue restricting marriage to opposite-sex couples because — well, because marriage has so far been restricted to opposite-sex couples.
(3) I wouldn’t be completely surprised if the court finds that the Prop 8 proponents have no standing; that’s not what I’m expecting, but it could happen. The questions on standing were pointed, withering, and perhaps decisive. I’ll leave further analysis of this point to those few experts in procedural constitutional law who have thoroughly digested the case law on this issue. (Some good ones are linked here.)
(4) There’s much, much more to come. The court even suggested that the case might for a time be diverted to the California Supreme Court to resolve an issue central to standing. Whether or not that happens, there will still be an appeal by the losing side to the full Ninth Circuit (called an en banc hearing), a likely appeal to, and decision by, the U.S. Supreme Court, and then even a remand (possibly) to the trial court — but not to Judge Walker, who is about to retire.
All things considered, I think the court would be wise to limit its ruling to the unique facts and circumstances of Prop 8 (and here I’m assuming that the case will survive the appeal). Here’s why:
Justice Kennedy, who holds the balance of power, would be much likelier to agree with a more cabined holding. And setting the case in the context of Romer would appeal to him; after all, he wrote it.
If the Supreme Court does throw out Prop 8 — without deciding the broader question of marriage equality, once and for all (or as “once and for all” as the Court gets) — then the gigantic, bellwether state of California will soon be issuing millions of marriage licenses to gay and lesbian couples (as well as eliminating needless complications that have tied courts up when dealing with transgendered folks) and it will become clearer, faster that the Earth didn’t spin off its axis. More states would then follow, more quickly, and before long the issue will become so clear — if not plain dumb, a waste of time and energy for all but the few most zealous oppositionists — that the Supreme Court would face little to no backlash in calling all committed, loving couples into the constitutional embrace of full marriage equality.