02/10/2012 03:24 pm ET Updated Mar 28, 2013

Gay Marriage Ruling, Written To Appeal To Justice Kennedy, Could Backfire

WASHINGTON -- Trying to play to Justice Anthony Kennedy's gut is a dicey endeavor. So when the U.S. Court of Appeals for the 9th Circuit on Tuesday struck down California's same-sex marriage ban -- also known as Proposition 8 -- with reasoning clearly designed for a future Kennedy opinion, constitutional lawyers were quick to point out the unintended consequences of the appeals court's solicitousness.

Judge Stephen Reinhardt, writing for the 9th Circuit majority, chose not to embrace the broad ruling handed down by U.S. District Judge Vaughn Walker -- that same-sex couples cannot be denied the right to marry, period. Instead, Reinhardt ruled narrowly that Prop 8, which passed by ballot referendum in 2010, violated the U.S. Constitution's guarantee of equal protection because it took away, without any rational reason, the right to marry that the California Supreme Court had guaranteed to the state's gay and lesbian citizens earlier that year.

Reinhardt is known as the most liberal judge on the country's most liberal appeals court, so it would have been no surprise had he ruled in line with Walker. His refusal to address the broader question in Perry v. Brown appeared to be a deliberate effort to remove the issue from Supreme Court review. It suggests that he thought an argument good enough for one moderate Republican at the bottom of the federal court pecking order (Walker) was too bold for another at the very top (Kennedy).

That calculation was a mistake, said professor Jason Mazzone, who teaches constitutional law at Brooklyn Law School.

"The votes are there [at the Supreme Court] to hold that bans on same-sex marriage violate equal protection," Mazzone argued. "The four dependable liberal justices would do it. And I think Kennedy would be inclined to do it. He's getting old, he's not going to be there a whole lot longer, and he knows historically how [the same-sex marriage debate] is going to turn out. This is not a justice that wants to be on the wrong side of history."

David Boies and Ted Olson, the superlawyers leading the fight against Prop 8, bet on this same view when they filed their lawsuit soon after the referendum passed. Others were not nearly as confident that Kennedy was ready to force marriage equality on more than 40 states or, if he was prepared to do so, that the states would accept the ruling without serious backlash.

Before Boies and Olson swept in, the preferred strategy among LGBT legal advocacy groups was to pursue an incremental, state-by-state push for marriage equality. Reinhardt, in cabining the Prop 8 case to California's unique situation, cleverly gave Boies and Olson a victory while putting a thumb on the scale of the state-by-state method, all while resting his reasoning entirely on a landmark gay rights ruling written almost 16 years ago by Justice Kennedy himself.

The problem is that Reinhardt left that ruling, Romer v. Evans, as the only leg upon which the Prop 8 challenge could stand. If Kennedy finds the Romer decision inapplicable to the 9th Circuit's narrow formulation of the Prop 8 case, then he may be left with only one option: to consider applying Judge Walker's broad opinion nationwide.

The Romer ruling held that a Colorado constitutional amendment passed by voter initiative to exclude gays and lesbians from all state and local anti-discrimination laws, current and future, could only have been motivated by animosity toward or disapproval of homosexuals as a class. That, the Supreme Court said, was an unconstitutional basis for a law. Reinhardt came to a similar conclusion about Prop 8.

But professor Orin Kerr of George Washington University Law School doubts that Reinhardt's repeated invocation of Kennedy's 1996 opinion will make much of a difference in the justice's independent assessment of the new case. "Anthony Kennedy is not going to say, 'Wow, Reinhardt cited me a lot. I guess I should follow him,'" said Kerr, who clerked for the justice.

As Kerr wrote on The Volokh Conspiracy, a popular conservative and libertarian law blog, there are arguments that Prop 8 serves a rational purpose not based on animus toward gays. "One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court" -- which many conservatives believe wrongly found a right to same-sex marriage in the state constitution -- "with the hope that such a public rebuke might influence the Court's decisions in the future," wrote Kerr.

In addition, Kennedy could see through the 9th Circuit's attempt to confine the case to California's particular situation. Writing in the New York Review of Books on Thursday, Georgetown Law professor David Cole, who favors the incremental approach to pushing same-sex marriage, called Reinhardt's limiting argument "more than a little disingenuous."

"Surely the validity of treating same-sex and opposite-sex couples differently with respect to the right to marry should not turn on the order in which the difference arose, much less on the happenstance of a short-lived court decision overturned by the people," Cole wrote, implying that an honest reckoning with Prop 8 requires a court to consider, as Judge Walker did, the constitutionality of same-sex marriage bans in general.

The 9th Circuit's reasoning, wrote professor Mazzone on the left-leaning Balkinization blog, creates a "freewheeling" principle, beyond the same-sex marriage context, that "if a court construes a constitution to require the state to give a right to some class of people, it is necessarily unconstitutional to amend the constitution to overturn that ruling."

One can easily imagine the U.S. Supreme Court justices voicing similar concerns at oral argument, as they press Ted Olson to defend the 9th Circuit's narrow ruling, which is at odds with Boies' and Olson's original game plan to federalize same-sex marriage. And Olson, even while defending the decision below, could try to convey to the Court that a ruling limited to California would be so legally unworkable as to make unavoidable the justices' addressing the broader question of whether any state can refuse its gay and lesbian citizens the right to marry.

Such a move to broaden the Court's scope of review is rare but not unprecedented. Two years ago, Olson, as lead counsel for Citizens United, helped to convince Kennedy and the Court's four-justice conservative bloc that they could not answer the narrow question of whether campaign finance laws applied to the on-demand video release of an anti-Hillary Clinton movie without also taking on the broader First Amendment issues surrounding corporate spending bans.

If Olson can once again persuade the Supreme Court to look beyond the narrow issues handled by the lower court, all the prognostication over Kennedy's gut on gay marriage may be for naught. Indeed, the logical flaws in Reinhardt's opinion, borne out of the effort to anticipate Kennedy's state of mind, could end up forcing the justice to make a sweeping decision on same-sex marriage, one way or another.