08/06/2010 02:32 pm ET | Updated May 25, 2011

Supreme 'Double Rainbow': Two Marriage Equality Rulings Head Toward High Court

With U.S. District Judge Vaughn Walker's decision to overturn California's ban on same-sex marriages, we now have two landmark marriage equality cases wending their way forward through the legal process, with the Supreme Court looming as their potential final destination.

The first is the aforementioned Prop 8 decision. The second is last month's ruling by U.S. District Judge Joseph Tauro, who ruled that the federal ban on same-sex marriage, more commonly known as the Defense of Marriage Act (DOMA), was unconstitutional. Taken at first blush, this combination of midsummer rulings seem to represent a wave of support for same-sex marriage. But on closer inspection, it would seem that not all marriage equality cases are created equal.

In deciding Perry v. Schwarzenegger, Judge Walker seemed to anticipate that his decision had a date with the Supreme Court, and so he went out of his way to set the stage for the occasion. Over at Slate, Dahlia Lithwick contends that Walker more or less hardwired his ruling directly to the legal amygdala of the very Supreme Court Justice who would represent the swing vote in the case:

Judge Vaughn R. Walker is not Anthony Kennedy. But when the chips are down, he certainly knows how to write like him. I count--in his opinion today--seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.

Lithwick's not alone in her view that this case has been nicely set up for Kennedy to hit home. Writing on these pages, UCLA law professor Adam Winkler notes that the "two major decisions" pertaining to gay rights handed down by the Supreme Court in the past 15 years both "came out strongly in favor of gay rights -- and both were written by Justice Kennedy."

In one of those decisions, Lawrence v. Texas, which held that bans on consensual sexual activity among same-sex partners were unconstitutional, Kennedy wrote that "our laws and tradition afford constitutional protection to personal decisions relating to marriage" and other "family relationships." "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by" the Constitution. "Persons in a homosexual relationship may seek autonomy for these purposes," Kennedy wrote, "just as heterosexual persons do."

These words suggest Justice Kennedy believes that gays and lesbians should have the same rights and privileges as heterosexuals. Of course, no right that heterosexuals enjoy is denied more often to gays and lesbians than marriage.

Justice Kennedy is also known to be the Supreme Court Justice most likely to vote in favor of expansive interpretations of individual rights. He's a libertarian, which means he almost always sides with the individual against the government.

Beyond the legal, Nate Silver notes that like just about anyone who has spent a long period of time plying his trade in the upper echelons of government, Justice Kennedy is probably ridiculously obsessed with his legacy:

Although I'm not qualified to analyze the merits of Perry v. Schwarzenneger from a legal positivist point of view, I will deign to take a crack at it from a legal realist frame. It seems to me that most of the "intangibles" bear upon Justice Kennedy in ways that favor his finding Constitutional protection for same-sex marriage. For one thing, he'll be 75 or 76 by the time the SCOTUS hears this case, and will probably be thinking about his legacy. Given that, in 50 years' time, American society will almost certainly regard the plaintiff's position (the Constitution does not permit discrimination in marriage on the basis of sexual orientation) as the right one, that legacy would be better served by casting the decisive vote in favor of the plaintiffs.

So, the typical human tendency to pursue vanity in immortality is something same-sex marriage proponents could end up successfully exploiting.

On the other hand, we have Judge Tauro's DOMA decision heading in the same direction. If Judge Walker's ruling anticipated a future showdown, Tauro's decision borrowed heavily from the zeitgeist. As Andrew Koppelman points out over at the Los Angeles Times, Tauro's "ruling relied on two arguments." One was that DOMA violated the equal protection clause of the U.S. Constitution. But the other argument was that the "the law interfered with the rights of states guaranteed in the 10th Amendment." The latter stance is the more problematic.

As anyone who's been following the political undercurrent knows, the past two years have witnessed the rise of a phenomennon known as Tentherism. Commonly enunciated by the denizens of the Tea Party movement, Tenthers hold to an extreme interpretation of the Tenth Amendment in the belief that the Federal government have such a limited authority to rule over the states "that virtually everything the federal government does is unconstitutional." Like, say, the Federal highway system.

Yale Law Professor Jack Balkin sees, in Tauro's decision, a winking commentary on this movement:

To be sure, there is something delightfully playful and perverse about the two opinions when you read them. Judge Tauro uses the Tenth Amendment-- much beloved by conservatives-- to strike down another law much beloved by conservatives--DOMA. There is a kind of clever, "gotcha" element to this logic. It is as if he's saying: "You want the Tenth Amendment? I'll give you the Tenth Amendment!" But in the long run, this sort of argument, clever as it is, is not going to work. Much as I applaud the cleverness-- which is certain to twist both liberal and conservative commentators in knots-- I do not support the logic.

Basically, the idea here is that this DOMA decision is a poke in the eye of Tenthers, who would likely be none too pleased that their pet cause has paved the way for same-sex marriage. If we were making a movie, this would be a fiendish twist. But in the real world, who knows? The Tenthers may accept a ruling that enables same-sex marriage as a loss-leader to their larger agenda, which is to undo Obama administration achievements, like health care reform. And that's why Balkin's larger point here is for marriage equality proponents to "be careful what you wish for."

Perhaps more importantly, [Tauro's] Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.

And that would have some seriously far-reaching ripples:

The arguments of Judge Tauro's two opinions are at war with each other. He wants to say that marriage is a distinctly state law function with which the federal government may not interfere. But the federal government has been involved in the regulation of family life and family formation since at least Reconstruction, and especially so since the New Deal. Much of the modern welfare state and tax code defines families, regulates family formation and gives incentives (some good and some bad) with respect to marriages and families. Indeed, social conservatives have often argued for using the federal government's taxing and spending powers to create certain types of incentives for family formation and to benefit certain types of family structures; so too have liberals.

In both opinions, Judge Tauro takes us through a list of federal programs for which same sex couples are denied benefits. But he does not see that even as he does so, he is also reciting the history of federal involvement in family formation and family structure. His Tenth Amendment argument therefore collapses of its own weight. If the federal government cannot interfere with state prerogatives in these areas, why was it able to pass all of these statutes, which clearly affect how state family law operates in practice and clearly give incentives that could further, undermine, or even in some cases preempt state policies?

As nifty as it might be to watch the Tenthers hoisted with their own petard, Balkin lays out the many reasons that the Obama administration would be obligated to defend the DOMA in this case. Not that they'll look forward to doing so: when it comes to bad political "optics" nothing is going to give progressives -- at least the ones lacking the keen sense necessary to divine the larger threat to a progressive federal agenda -- greater fits than watching the Obama administration go to the wall in the defense of the Defense Of Marriage Act.

Anyone who really wants to get into the business of predicting how the Supreme Court will rule on any given case may as well take up the study of divination. Still, it seems to me that if you're a fan of marriage equality, you'd best pin your hopes to Judge Walker's Prop 8 ruling.

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