Guest post by Rieux.
There is a very real chance that this decision has cemented marriage equality in California permanently. Yes, it’s possible that five flaming assholes on the Supreme Court will jump in and take it all away—but to my eyes that outcome doesn’t look nearly as likely as previous commenters think it is.
To explain, in inordinately long-winded fashion:
Court decisions striking down homophobic marriage laws always make for terrific reading. Goodridge in Massachusetts, Varnum in Iowa, the Marriage Cases in California state court, and the federal district-court decision in this case, Perry, are all inspiring examples of jurisprudence—I find it hard to avoid tearing up while reading them. This is what law, legal rhetoric, and legal institutions are supposed to do for human beings; decisions like those make me feel that my profession is an honorable and valuable one.
The current Ninth Circuit opinion (I just finished reading the majority; I’ll get around to the dissent some other time, bah) evokes some of the above emotions, but not really the tear-jerking ones: this is an honorable decision as well, but more than that it’s a careful, even crafty decision.
The majority decision is by Judge Stephen R. Reinhardt, who happens to be the same judge who found in favor of Michael Newdow and held that public-school teachers and staff can’t lead students in a Pledge of Allegiance that includes “Under God.” Reinhardt wrote the initial (2002) decision in Newdow’s favor, and then after the Supreme Court overturned that decision in flagrantly absurd and cowardly fashion (fabricating a new rule of law out of thin air to decide that Newdow didn’t have standing to bring the suit in the first place), he wrote a scorching 123-page dissent when Newdow’s subsequent attempt to bring the case with new plaintiffs was rejected by the other two judges on the Ninth Circuit panel. You’ve got to imagine that Reinhardt has a hell of a bone to pick with the Supremes, and it really looks to me like he’s structured this decision (with, it appears, an assist from the attorneys for the intervenor-plaintiff City and County of San Francisco) in such a way as to make it difficult for Roberts and company to take the case up in the first place.
As a quick primer on how these processes work: Ordinary cases in U.S. federal court are filed in one of the eighty-nine U.S. district courts; the Perry case, here, was filed in the U.S. District Court for the Northern District of California. Once a district court makes a final judgment on a case before it, the losing party has the right to appeal to the applicable Circuit Court of Appeals. Appeals from all of California’s district courts (as well as eight other western states’ and two Pacific U.S. territories’) go to the Ninth Circuit Court of Appeals—which, to my understanding, is the biggest and busiest of the twelve federal circuit courts. There are numerous judges in each circuit court, but each appeal from lower courts is heard by a panel of only three judges, who then issue a decision. Tuesday’s outcome in Perry was a 2-1 majority decision, with Reinhardt and Judge Michael Daly Hawkins in the majority and Judge N. Randy Smith (“N. Randy”?) in dissent.
After that, the next step for the losing party is to request a hearing in front of “the en banc court,” which means in front of all of the judges of the circuit court. In the Ninth Circuit, that’s currently forty-four justices. For logistical reasons that might be self-evident, such a request is seldom granted. It’s a common request, though, because it’s a necessary prerequisite to the next step, which is….
Petitioning the U.S. Supreme Court for a writ of certiorari (“cert” for short), which is to say asking the Court to take up the case and review the circuit court’s decision, whether it was en banc or the far more common three-judge panel*.
Anyway. The Supremes get a huge number of cert petitions every year, and they accept only a small fraction of them. A very large proportion of the petitions they accept, moreover, stem from issues on which one circuit court of appeals has ruled one way and another circuit court has ruled in a different way (creating what’s called a “circuit split”); in that situation, the notion is that the nation needs the Court to step in and resolve the discrepancy. A circuit split isn’t an absolutely mandatory condition for the Court to take up a case, but it’s the most common and uncontroversial one.
And that’s where Reinhardt’s craftiness in putting together his decision comes in: unlike the courts in Goodridge (Massachusetts), Varnum (Iowa), and even the district court in this litigation (N.D. Cal.), the Ninth Circuit majority opinion in this case doesn’t even directly hold that denying marriage equality to gay and lesbian couples is, in and of itself, unconstitutional. It seems likely that Reinhardt and Hawkins would have been willing, and maybe even happy, to issue such a ruling—but if they had done so, that would immediately create a circuit split, because one other federal circuit (mine, ugh) has already held that bans on same-sex marriage don’t violate the U.S. Constitution. See Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).
Instead, the Ninth Circuit majority opinion only holds that California’s decision (via ballot-proposition constitutional amendment) to take away a marriage right that had previously existed violates the Constitution. That’s a notably narrower ground than the clean’n’simple “Bans on gay marriage violate equal protection” holding that we supporters of marriage equality would like to see, but it makes the entire decision far less relevant to any jurisdiction outside of California—and therefore far less worthy of a place on the Supreme Court’s docket.
That narrower basis for the panel majority’s decision also allows Reinhardt to draw a strong parallel between this case and (what I think is) the nicest American gay-rights decision in the pre-Goodridge era: the U.S. Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the state of Colorado had passed, by ballot initiative, a state constitutional amendment providing that state and local governments were barred from recognizing gays and lesbians as a protected class in any anti-discrimination law. The Romer Court struck this “Amendment 2″ down, holding that “[i]t is not within our constitutional tradition to enact laws of this sort”—laws that “singl[e] out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The Court concluded that the Colorado provision violated the Equal Protection clause in the Fourteenth Amendment, because it “classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else.”
The Ninth Circuit decision published Tuesday holds that Prop 8 is just Romer all over again:
The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional; there was no doubt that the Fourteenth Amendment did not require antidiscrimation provisions to be afforded to gays and lesbians. The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.
The Supreme Court’s answer was “no”—there was no legitimate reason to take away broad legal protections from gays and lesbians alone, and to inscribe that deprivation of equality into the state constitution, once those protections had already been provided. We therefore need not decide whether a state may decline to provide the right to marry to same-sex couples. To determine the validity of Proposition 8, we must consider only whether the change in the law that it effected—eliminating by constitutional amendment the right of same-sex couples to have the official designation and status of ‘marriage’ bestowed upon their relationships, while maintaining that right for opposite-sex couples—was justified by a legitimate reason.
This seems to me downright sneaky: the Ninth Circuit panel majority is openly avoiding the broader issue of the constitutionality of bans on gay marriage, which is relevant all across the country, in favor of focusing on a peculiar set of facts that currently only applies, and probably only will ever apply, in California. “Possibly you can refuse to give gay couples the right to marry, but once you’ve given it to them you can’t (constitutionally) take it away again.”
There can’t possibly be a circuit split on that issue, because it can’t currently happen in any other circuit. (Maine, which is in the First Circuit, came close in 2009… but gay couples there never actually had a chance to get married before a homophobic ballot initiative took the right away.)
The upshot is that it’s going to be substantially more difficult for the Supremes to reach down into the Ninth Circuit, grab this case, and overturn it than it would have been had Reinhardt not written the decision this way. It’s not impossible to imagine that Roberts, Scalia, Thomas, and Alito would vote to grant cert here, but it’s a little hard to understand how they could argue that the panel’s actual ruling—regarding taking away a marriage right that had already been granted—is some kind of (a) pressing legal issue for the whole nation or (b) drastic departure from the American jurisprudence that the Supremes supervise.
Presuming that they do take it up, then, should we be pessimistic? Well, regarding those four guys’ votes, sure. Scalia and Thomas, especially, have made their drooling homophobia (not to mention callous disregard for Court precedent, and indeed for common decency, when it doesn’t suit their prejudices or politics—see Bush v. Gore, 531 U.S. 98 (2000)) more than clear. But it’s hard to imagine Ginsburg, Breyer, Sotomayor, or Kagan overturning the Ninth Circuit decision, given how narrowly Reinhardt drew it.
So we get to the kicker, the swing vote that everyone has been wondering about for years (I’m still wondering whether Sili was making a cute joke about this @3): Anthony Kennedy. Would Kennedy vote to uphold this decision? Conceivably not, but guess who wrote the Court’s Romer opinion in 1996? Guess who composed that whole argument about the evils of “classif[ying] homosexuals not to further a proper legislative end but to make them unequal to everyone else?” Anthony Kennedy did!
And so Reinhardt’s crafting doesn’t just limit the chances of a successful cert petition—it’s also aimed directly at appealing to the swing vote that would determine whether the Ninth Circuit decision survives. C’mon, guys, we’ve gotta like those chances. (And, not surprisingly, the right wing is already virtually burning Reinhardt in effigy again. Too bad he’s 80 years old; he’s doing an awful lot of good for the country.)
Even in the worst case scenario, the Ninth Circuit decision being overturned means that we’re back where we started in November 2008: Prop 8 back in force, and GLBs in California being shit on by the law again. That’s certainly an ugly possibility, but given the potential upside (and the fact that the worst-case scenario is awfully similar to the status quo), the outlook looks awfully sunny on balance to me.
So cheer up—this decision is great news!
*See comment 2 for amendments.