This is my second post on the Olson/Boies marriage case in federal court in San Francisco. This part covers the Supreme Court and what might happen if the case gets there. (My last post outlined the possible outcomes, their consequences, and what's likely to happen in the lower courts -- you can read it here if you missed it. )
1. Will the case get to the U. S. Supreme Court?
There’s generally no right to appeal to the Supreme Court. You can ask the Court to review your case, and, most of the time, the Court can take it if the Justices want to. It takes votes from four Justices for the Court to take a case, five to win it if it does.
I suspect that if the Perry plaintiffs lose at the Ninth Circuit, the Supreme Court will not take the case even if they ask. Though marriage for same-sex couples is a hot topic in the law, there are few federal constitutional decisions that even touch on it, and there’s no split among the Circuits -- none of the federal appeals courts have said the Constitution requires the state to stop excluding same-sex couples from marriage. I think, much as it has with Don’t Ask, Don’t Tell, the Court will stay out of the issue as long as no state is being required to marry same-sex couples by virtue of the federal Constitution.
But if the plaintiffs have either a small or a big win at the Ninth Circuit, I think the Court will certainly take the case. A win at the Ninth Circuit would mean either that the federal Constitution required nine western states to stop excluding same-sex couples from marriage (the Big Win) or that it required three or maybe four to stop. That’s a substantial enough interference with state sovereignty on a critical social issue that it seems inconceivable that the Court wouldn’t take the case.
2. What will the Court do?
Figuring out what the Court will do if it takes the case is another matter. There are three ways to look at it.
a. Win or lose: constitutional law.
First, you can take a pure constitutional law perspective. As I said before, most constitutional lawyers think that discrimination based on sexual orientation should not be treated as generally constitutional. If the Court were to agree, it would be unlikely to uphold the marriage exclusions. But it’s not as if this is the only way to read the Constitution. There is a constitutional theory that says that all discrimination except discrimination based on race, maybe alienage, and sex should be treated as generally constitutional (the idea is that the 14th Amendment, which guarantees equal protection, was really about race; most of the folks who subscribe to this view wouldn’t include sex either, but that constitutional ship sailed a long time ago). For the last 30 years or so, this narrow view of what kind of discrimination the federal Constitution prohibits has been doing better in the Supreme Court than the broader view. But there are times when the Court seems to be trying to chart a somewhat broader course.
b. Win or lose: history.
Second, you could look at the institution in a historical perspective. Generally speaking, the Court hasn’t held that the Constitution comes down on one side of a contentious social issue until states where about two-thirds or more of Americans live have already come down on that side of the issue. Seventeen states required racial segregation by law when the Court struck it down in Brown v. Board of Education. Sixteen states banned interracial marriage when the Court struck that down in Loving v. Virginia. Thirteen states had laws against same-sex intimacy when the Court struck Texas’ law banning it down in Lawrence v. Texas.
Still, this historical pattern isn’t rigid either. When the Court feels that something is right, and there is a widespread sense that the country is ready for it, it will move when many fewer states have acted. The “one person, one vote” cases of the 60s, which restructured virtually every legislature in the nation, are the most encouraging example. Roe v. Wade, which established a woman’s right to choose, is the most famous example, although less reassuring given the backlash and the Court’s own view now that maybe it acted too quickly.
Calculating when the Court is ready to act can be a tricky business. Both Brown and Lawrence undid earlier “test” cases designed to get the Court to strike down segregation and “sodomy” laws respectively, earlier cases in which the court did just the reverse.
c. Win or lose: counting heads.
Finally, you could do a political analysis -- just count heads. This may be the favorite parlor game of everyone who cares about the Court, so I’m going to leave the details to you after making three observations, the first two relevant only if you think Justice Anthony Kennedy’s vote matters.
First, Justice Kennedy can be unpredictable. He’s been a champion on LGBT cases so far. There are only two Supreme Court cases that have directly done great things for LGBT people, and he wrote both of them. In the Lawrence case, he wrote stirringly about how states cannot “demean” our relationships, how we have the same right to autonomy that heterosexuals have. But this is also the man who wrote in Planned Parenthood of Southeastern Pennsylvania v. Casey that women have a constitutional right to control their own destiny, including deciding for themselves whether to terminate a pregnancy, and who wrote in Gonzales v. Carhart that decisions involving late-term abortions can’t be left to women in part because they might come to regret them later. And in the Lawrence case, lyrical as he was about our relationships, he went out of his way to say that the case had nothing to do with marriage. It’s not that it looks like he’ll vote against us; it’s just that it is really very hard to say what he’ll do.
Second, I think Justice Kennedy is very proud of the Lawrence case, and the Romer case, the other great LGBT rights case that preceded it. I couldn’t see him signing an opinion that said discrimination against gay people is generally constitutional. I think that a decision with a catastrophic outcome is thus pretty unlikely, because I can’t count five other votes for that.
It’s fair to ask, if a catastrophic loss isn’t likely, how big a risk is going to the Supreme Court. The answer depends on how much you care about how long it takes to get fair treatment for LGBT people. As I’ve written before, a Big Loss would make the marriage fight, and other gay rights issues take significantly longer. And, as I mentioned above, even a Big Win has risks. I guess it depends on how lucky you feel.
Finally, there is the videotaping issue. Just before the trial began in the San Francisco marriage case, Judge Walker ordered that the case be videotaped, broadcast in an overflow room in San Francisco and in a few other courthouses around the country and posted on YouTube the next day. The backers of Prop 8 convinced the Supreme Court to intervene and effectively prevent the telecast in other cities (which effectively ended the YouTube idea as well). We may not have heard the last of this; Judge Walker taped the entire trial anyway, and refused to destroy the tapes already made.
It is highly unusual, to put it very mildly, for the Supreme Court to become involved in a dispute over a pretrial order in District Court. And the Court suggested that one of the reasons it had done so was the fears Prop 8 supporters have of retaliation, a fear based on one of the more impressive urban myths of the new century—that the winners in the Prop 8 fight are being persecuted by the losers. But the Supreme Court’s ruling could be as much about a very paternal Court that doesn’t trust that the public will understand the subtleties of the law as it is about concern for the backers of 8. Kennedy watchers note: he was in the majority that stopped the distribution.
3. The next few years.
The political consequences of the case haven’t gotten much attention, but they may be very important. Particularly if the plaintiffs win, but perhaps in any case, it is going to be very difficult to rally the LGBT community and its progressive allies to go back to the ballot in California while the case is still going on. People are not going to want to invest lots of time and money in an electoral battle that the courts may make irrelevant. And the case could be going on for some time. If Judge Walker does issue his decision sometime in the next few months, the earliest we’d likely see a decision from the Ninth Circuit would be the spring of 2012 (the Court could expedite the case, but that doesn’t seem likely). A Supreme Court decision would likely come nine months to a year later.
But if the case is likely to put a damper on things in California, it ought to be a spur to action elsewhere. As I said above, history tells us that the more states that have marriage, the better the odds are at the Supreme Court. We’re not going to get to 30 or 35 by 2012, but it would be good if we picked up a few more. Maybe more important, the more it seems like the country is ready for marriage, and it’s just the political process that is jammed, the better our chances with the Court. So any significant progress helps, and the higher the profile the better. 2013 may seem like a long way off to the folks who brought the San Francisco marriage case and the folks who want to go back to the ballot in California. But in terms of making the kind of progress that might help us win at the Supreme Court, it’s tomorrow.
Follow Matt Coles on Twitter: www.twitter.com/ACLULGBT
Dammit.
I won't bother to enumerate the factual cases of it happening, or even just the milder cases of harrassment I myself have personally noted, but feel free to keep your head in the sand. I hear it's nice down there.
never ever saw a news report where someone spray painted straights must die anywhere...and yet every day of every year it happens to gay people...Never heard of a straight guy getting killed JUST because he was straight...but a gay guy gets murdered every day..yeah you are right...those silly hateful gays have no right to damage 3 yard signs over the last 60 years...no right at all....
now run along missy..I am sure you want to have time to choke down a nice shrimp dinner before you head off to church to talk about how gay people don't follow the bible....shrimp dinner indeed!
You are misreading Supreme Court case law on the subject of marriage: you are making the same mistake the New York Court points out in its recent decision. Discussing the Supreme Court precedents of Turner v. Safley, 482 U.S. 78 (1987); Zablocki v. Redhail, 434 U.S. 374 (1978); Loving v. Virginia, 388 U.S. 1 (1967); Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma, 316 U.S. 535 (1942)
Judge Graffeo noted….
“To ignore the meaning ascribed to the right to marry in these cases and substitute another meaning in its place is to redefine the right in question and to tear the resulting new right away from the very roots that caused the U.S. Supreme Court and this Court to recognize marriage as a fundamental right in the first place.”2
2 - Andersen v. King County (J. Graffeo concurring)
Furthermore: the question of if the right to marriage includes the right to same-sex "marriage" was asked and answered already in the SCOTUS precedent of Baker v Nelson”
Judge Graffeo was not part of that court so how could she have a concurring opinion, or even a dissenting opinion?
As far as I am aware, Baker v. Nelson is the only SCOTUS ruling on SSM, and all federal court rulings I've seen support Baker. No federal court has ruled in favor of SSM to date.
There may be several State courts that have ruled in favor of SSM but there are others, such as in Andersen, that have ruled against SSM.
Mr. Coles is correct in his analysis when he says that it's a toss-up as to how this SCOTUS will rule.
Mr Coles analyisis as I state above does not quote nay of the Supreme court precedent on the fundemental right to marriage. His (or your) analysis that it is a "toss-up" may be accurate but as a matter of law he avoids any mention of both the controling precedent of Baker as well as any discussion of the relevant case law.
Its weight raises and falls on the strength of the analogy.
Note this quick rebuke of same-sex “marriage” offered by the plurality in Hernandez v. New York, Justice Smith, when confronting the idea that marriage as historically defined was analogous to Race
“[T]he traditional definition of marriage is not merely a byproduct of historical injustice. Its history is of a different kind .”
"The use of the term kind is telling. Not a matter of degree, mind you. Rather a different of qualitative substance…a difference of kind.
As dismissals of the racecase goes, this is rather mild. However – I like it for precisely that reason. It dismisses casually an analogy that doesn’t hold up precisely because it is not the same kind of thing being compared
As the Washington dicesion illustrates
It charges the main dissent with “sadly overstep[ping] the bounds of judicial review” for suggesting that supporters of marriage laws are bigots. It calls the lower court decisions “transparently result-oriented” and a reflection of “the dominant political ideas of their legal community,” the concurrence says: “[t]hough advanced with fervor and supported by special interests loudly advocating the latest political correctness, the arguments cannot overcome the plain legal and constitutional principles supporting Washington’s definition of marriage.”
Why do people get away with this outright lie? The US Constitution is very specific. "In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." For Congress to make a general exception to all appeals just blows a hole in the Constitution. How do we get the Supreme Curt to once again recognize its Constitutional appellate Jurisdiction?
The Author probably should have said something like "There is generally no right to force the Supreme Court to accept your appeal for further review"
Maybe I'm miscalculating the hate that these people have against gays and lesbians, but I don't think it's a chance I would take if I were them...
If DOMA is stricken as unconstitutional, there could be a "conflict" that would allow appeal any loss of the Perry case at the ninth district. Also, if DOMA is removed, then 18,000 existing same sex couples will have full marriage rights in CA/Federal law, while new couples would be 'barred' from marriage due to Prop 8. It's likely at that point that the California Supreme Court would get back into the fray, finding that Prop 8 is suddenly unconstitutional at a state level because it actually does deny rights.
Also, during the appeal process, the people of CA could repeal Prop 8 (not likely given the current lack of political willpower. I won't even go into how EQCA says repeal won't happen until "2012 OR LATER" and how miraculously people interpret that as a commitment to actually do something in 2012, when that's SO FAR REMOVED FROM REALITY). That would likely short circuit any appeal to the Supreme Court.
It's difficult to say where all this would leave the Perry case, but the simplistic analysis above barely scratches the surface of the possible outcomes.