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Gaming Out Gay Marriage's Path to the Supreme Court

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With rulings on gay marriage from two federal appellate courts in the past week, it is now more likely that the Supreme Court will finally grapple with the key civil rights issue of our time. But despite the hype, it isn't yet certain that the justices will decide anything. We are in a stage where timing, litigation strategy, and judicial politics will all be critical.

On Tuesday a 90-day clock began running for the defenders of California's Proposition 8 to petition the Supreme Court to hear their appeal in Perry v. Brown. A lopsided majority of the judges of the Ninth Circuit Court of Appeals in San Francisco voted to deny reconsideration of a February opinion, authored by judicial liberal lion Stephen Reinhardt, which struck down Prop 8.

Last Thursday the First Circuit Court of Appeals in Boston struck down the federal Defense of Marriage Act in a careful, scholarly decision authored by Michael Boudin, a highly respected judge appointed by the President George H. W. Bush.

These were big victories for advocates of marriage equality, but their fate now lies, ironically, in the hands of the opponents of equality, who have the right to appeal or not, and then with the justices themselves, who decide what cases to hear and on what schedule.

Some background on strategy is important. Generations of lawyers have been taught that when litigating a major civil rights campaign in the federal courts, it is wise to pave the way with one or two (relatively) easier cases before teeing up the blockbuster. Doing so can strengthen judicial backbone and help soften up public opinion.

For example, Sweatt v. Painter, a 1950 case that held that Texas could not shunt black students into an inferior state law school, helped erode the foundations of separate-but-equal education, making it easier for the Supreme Court to issue its landmark 1954 desegregation decision, Brown v. Board of Education. Similarly, Loving v. Virginia, the 1967 decision that wiped out laws against interracial marriage, was preceded by McLaughlin v. Florida, which struck down a law that made it a criminal offense for an interracial couple to "occupy in the nighttime the same room."

For same-sex marriage, the prevailing view among pro-equality scholars and advocates has long been that striking down DOMA would be an easier lift for the Supreme Court, legally and politically, than invalidating California's marriage law. Thus, it would be better to get the DOMA case in front of the justices before Perry.

DOMA is not about the right to get married. Rather, it prohibits the federal government from recognizing tens of thousands of existing same-sex marriages that states like Massachusetts have chosen to create. The federal government does not typically override the judgment of states about who is considered legally married, and DOMA's legislative history is rife with bigotry. In short, DOMA targets gays and lesbians for discrimination, offends federalism, and does so, according to Judge Boudin's opinion, for no constitutionally acceptable reason.

Moreover, DOMA is on a losing streak. Two other lower federal courts have held it unconstitutional, and several more challenges are pending.

By contrast, Perry was designed by celebrated bipartisan litigators Ted Olson and David Boies as the Hail Mary pass that would win same-sex couples the right to marry in all 50 states. But Judge Reinhardt handed them a more limited victory whose constitutional analysis applies only to California. Much of Reinhardt's holding could actually be applied by courts in eight other states that give gay couples the rights and duties of marriage, but do so under the inferior labels of "civil union" or "domestic partnership." Still, the outcome was less dramatic than most observers expected.

So will Perry and DOMA arrive on the Supreme Court's doorstep together? Will the Court decide one before, or instead of, the other?

The defenders of Prop 8 -- zealous, religious, conservative activists who are represented by gung-ho, religious, conservative lawyers -- have already proclaimed their intention to seek Supreme Court review. But the justices control their own docket (four out of nine must vote to hear a case) and nothing requires them to play along. They may reason that Judge Reinhardt's decision doesn't warrant review because it provides at least a plausible application of constitutional precedent, and only (at least for now) affects the law of one state. There will eventually be other right-to-marry cases that may provide better vehicles for the Court to decide same-sex marriage for the whole country. The more liberal justices may wish to postpone that day of reckoning, and the Court's conservatives might be content to wait.

Moreover, the justices may think it more important to resolve DOMA's constitutionality first, because DOMA is a federal statute, and because Judge Boudin, a Republican-appointed judge with a superior reputation for intellect and judgment, acknowledged explicitly in his opinion that the Supreme Court should have the last word.

But consider also that the losers in the DOMA case -- namely John Boehner and his House Republicans, who hired famed advocate Paul Clement to defend the law after the Obama administration refused to do so -- still hold a few cards on the issue of sequencing. They could fold their tent, stop defending bigotry, and elect not to seek Supreme Court review. Or Clement could persuade Boehner that they should wait for one of the other DOMA decisions to work its way up the federal courts. Or Clement, who is conservative but not crazy, might conclude that DOMA is not a hill worth dying on.

Such forbearance would allow Perry to go up for possible review on its own. It is plausible to believe that the defenders of Prop 8, who are more doctrinaire and less sophisticated than the DOMA team, would like a clear shot at the Supreme Court and might lobby Boehner and the congressional GOP to stand down. Perry is still the more difficult case for marriage equality, though Judge Reinhardt's narrow opinion, which seems to have been crafted to evade Supreme Court reversal, made it less so.

The bottom line is that we won't know for several more months whether the Supreme Court will actually decide one or both pending gay marriage cases on the merits. The answers depend on complex variables: the reputations of judges Reinhardt and Boudin and the perceived soundness of their opinions; the amount of fight that Boehner and Clement still have in them for an uphill battle; and, ultimately, the murky politics and motivations of the justices themselves.