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Perry v. Brown: Weighing the risk, cost and potential rewards of taking the case to the Supreme Court

DOMA trials Marriage equality Prop 8

This post is part of the inaugural legal symposium we at are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.

Our first post was from Chris Stoll, senior staff attorney for the National Center for Lesbian Rights. Yesterday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad.

If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!

By Scott Wooledge

California’s Proposition 8, an amendment to the California state Constitution revoking the right of same-sex couples to marry, was passed by popular referendum in November 2008. It has been struck down twice in federal court as unconstitutional, both in trial and on appeal.

On June 5, the Ninth Circuit Federal Court of Appeals denied a motion for a second appeal before a panel of 11 justices. This started the clock on a 90-day window for Prop 8 proponents to petition the Supreme Court for a writ of certiorari to argue the case at their final venue.

Although they have yet to file the paperwork, proponents have been unequivocal in their intention to do so. Alliance Defense Fund attorney Charles Cooper told Metro Weekly’s Chris Geidner:

“We’re pleased to petition the Court to hear this case. The lower court opinions were little more than an attack on the character and judgment of millions of Californians, and those decisions essentially ignored all relevant Supreme Court and appellate court precedent. We are hopeful and confident that the Supreme Court will review the 9th Circuit’s decision.”

The question becomes, is it preferable for the LGBT movement if the Court grants their request? Or denies it?

The excitement surrounding the Prop 8 case was all about the potential for the case to ultimately affirm a fundamental right to marry to same-sex couples across the entire United States. And it began with that promise, for sure. This was the force driving American Foundation for Equal Rights and co-counsels Ted Olson and David Boies.

But a funny thing happened along the way; that wasn’t what the appeals court found.

The appellate judges managed to sidestep the key question: “Does the Constitution endow LGBT couples with a fundamental right to marriage?” They took pains to make explicit that isn’t what they are saying. From the ruling:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right has that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. … We need not and do not answer the broader question in this case, however…

The Prop 8 Appeals ruling essentially applies only to the state of California, and only to this particular statute having been enacted under these unique circumstances (having attained the right to marry, then having it taken away by popular vote). These are not circumstances that have been repeated in other states.

Broadly, if the Supreme Court takes the case, the nine justices will have the opportunity to reject the appeals ruling, agree with the appeals ruling, or agree and expand its scope.

Their ruling would need to be more expansive to strike down the 30-odd state gay marriage bans and deliver the universal right to marriage equality to America. This would be the grand prize and, of course, the entire impetus for arguing it before the Supreme Court of the United States. But, I am convinced the chances that the Supreme Court will make such an expansion are, at best, quite remote.

Convincing the Court to expand the appeals ruling outside the bounds of California and beyond this specific statute and specific circumstances will be the task of Olson and Boies, should they get the chance. And I have complete confidence they are the finest team to make that argument.

But all judges are trained and even obliged by judicial restraint to deliver as narrow a ruling as possible. We don’t like it in this case, but it is, in general, a wise guiding principle of jurisprudence (at least we appreciate it for the likes of Justice Scalia).

The nine have been handed on a silver platter a perfect opportunity to say, “Yes, the Ninth got it right, the gays in California can marry. The rest of you, we’re really not sure. Fiddle-dee-dee, we’ll think about that tomorrow.” And given the very tiny, incremental steps we’ve seen in the federal LGBT court cases, the over-abundance of caution, I think they will probably leap at that opportunity.

In fact, on Thursday, civil libertarians lamented that the Supreme Court ducked answering key First Amendment questions raised in two cases: FCC v. Fox and Knox v. SEIU. This is what they do.

Should they duck the fundamental question of whether same-sex marriage is a right, then for a year or more of waiting, the LGBT community won’t have gained any real legal ground that hasn’t already been won. (Granted, it may clear up some of the confusion surrounding appropriate scrutiny levels that apply to the LGBT discrimination. But then again, it may not.)

So ultimately, when I assess the risks (LGBT community loses it all, a Hardwick-level wipeout) and the costs (yet another year plus wait) against the likelihood of snagging the grand prize (universal right to marriage equality affirmed), I find myself thinking it might be for the best if the Supreme Court denies the petition for a writ of certiorari on this case. Sometimes it’s okay to win on points, even if you hoped for a knockout.

And I think the chances are perhaps better than many are predicting that the Court may pass. It’s possible the the justices may decide this dispute over a California law has been adequately settled on trial and appeal, and there is no pressing national interest that compels the SCOTUS to hear it. (Countless LGBT couples feel differently, obviously, but the powers that be have rarely been shy about asking gays to wait and wait.)

The upside of the SCOTUS passing is this whole ugly episode finally will be over, and marriage could resume in California, soon, perhaps even before Washington, Maryland, Maine and Minnesota voters decide similar questions on their ballots. The population of Americans with access to marriage equality would explode overnight. The Lambda Legal Nevada case in federal court still holds the potential to be the gay Loving v. Virginia. And there are still more than 30 other state constitutional bans LGBT legal eagles can start taking a swing at. They can build on what has been learned and where we’ve gained.

The Defense of Marriage Act challenges, which are coming to a full boil, most notably the Gill case in the First Circuit, seem a preferable choice to arrive at the Supreme Court first.

Until we get around to challenging Section 2 of DOMA, these cases also sidestep the question of a fundamental, constitutional right to same-sex marriage. This absolves the justices of the political hot potato of sending an edict to say, Alabama, that they must start letting the gays get married. This would make a favorable ruling, perhaps, a little more likely.

What the DOMA cases do offer is the opportunity to present issues of legalities of same-sex marriage to the justices. We know many of them have not encountered this topic in their professional capacity. They will get a window into the lives of LGBT people that we can’t presume they have ever had. Familiarity with actual gay people is one of the highest indicators a person will be LGBT supportive.

And marriage equality opponents’ arguments vary little whether they are defending DOMA or Prop 8. If they can be shredded on DOMA, we can return to shred them again. And we will.

Whatever popular opinions circulate on the wisdom or folly of the Court granting or denying a Prop 8 hearing, they are likely to have little, if any, persuasive effect on the Nine’s ultimate decision. For now, the task before marriage equality supporters seems clear: keep doing what you’re doing. Tell your stories. We are winning.

Scott Wooledge is surviving veteran of the print magazine business. He is an activist and a featured writer at Daily Kos website. He lives in Brooklyn, NY.

Twitter: @Clarknt67


  • 1. AnonyGrl  |  June 27, 2012 at 10:50 am

    For now, the task before marriage equality supporters seems clear: keep doing what you’re doing. Tell your stories. We are winning.

    Amen, brother! I have submitted a piece for this symposium with that as my central theme. Use these court cases and the news generated to get our stories out there. Through educating people, we win!

  • 2. fromdamoon  |  June 27, 2012 at 10:54 am

    Thanks for your excellent analysis Scott! 🙂

  • 3. Dr. Brent Zenobia  |  June 27, 2012 at 11:56 am

    One point I've not heard discussed much. If SCOTUS denies cert and SSM once again resumes in California, would anyone care to speculate what the reaction is going to be within the Mormon church?

    The President of the LDS church essentially said claimed to have received a direct message from God that Mormons should tithe and contribute their time to pass Prop 8. If SSM resumes in California, what does that do to the Mormon leadership's credibility? This is no mere difference of opinion; they claim to be Prophets of God, which doesn't allow the out of saying "God works in mysterious ways." If God told them to do this thing, only to waste all that time and money (to say nothing of the huge black eye this has given the Mormon church) wouldn't you expect some grumbling among the rank and file after they gave tens of thousands of dollars, closed out college savings funds, and raided retirement reserves to pass this ballot measure?

    I would think rank and file Mormons would start to question whether this fight against SSM is worth continuing.

  • 4. DaveP  |  June 27, 2012 at 12:37 pm

    That process seems to already be well under way. Check out sites like 'Mormons for marriage'. And there was a substantial contingent of pro-marriage equality Mormons marching in the San Francisco LGBT Pride Parade last week….

  • 5. Scott Wooledge  |  June 27, 2012 at 12:43 pm

    You know, I don't know the answer to that question. I don't know if Mormons believe in the infallibility of their prophet anymore than Catholics believe in the infallibility of the Pope.

    Sure, it's doctrine that the Mormon prophet speaks the unquestioned word of God, and it begs a crisis of faith to imagine the prophet misheard or misspoke or misled them.

    But the Pope keeps telling his flock, God told him they shouldn't use birth control, and it hasn't been theological crisis these last 40 years. They still listen to the Pope on some issues and blow him off others.

    And likewise there is mounting evidence that the Mormon flock is, like many Catholics, stepping out of line on LGBT rights.

    I personally think the Mormon Church will be less involved in the marriage battles this year than in Prop 8.

    Not because of any philosophical reasons or change of heart, but for the fact that their high profile involvement (ala Prop 8) many endanger Mitt Romney's shot at the Presidency.

  • 6. Robroberts2009  |  June 27, 2012 at 4:46 pm

    Scott — your article and answer here are spot on. We are NOT going to get universal SSM from SCOTUS; lets cash our chips and take home what we won — SSM in California. This victory will be sweet and by no means small. California and New York will continue to pave the way for SSM and gay rights across the land. Lets just get this done in CA before Mitt Romney possibly gets his hands on the levers pf power. The prospect of a Mormon controlled government should terrify everyone, especially anybody who isn't rich, white and male.

  • 7. Steve  |  June 27, 2012 at 1:20 pm

    Rank and file Mormons have long forgotten what was said about that

  • 8. Robroberts2009  |  June 27, 2012 at 4:56 pm

    Mormon prophets have been proven wrong again and again — from polygamy to their views on blacks being "of the devil". Its funny how when the church is forced, the prophet suddenly gets a message from God to get with the program. The Mormons will sacrifice even their most sacred principles if it means their continued survival. And if the Mormons continue on their collision course with gays and gay equality it will further damage and deligitimize the Mormon Church. And besides, the gays could be the Mormons best ally in some distant future when they seek to reinstate polygamy, which is still a requirement to get into heaven according to Mormon belief.

  • 9. SBMom  |  June 27, 2012 at 5:51 pm

    Polygamy has NOTHING to do with "getting into heaven"….. Spoken from a Mormon ally fighting for equality.

  • 10. Robroberts2009  |  June 27, 2012 at 7:34 pm

    NOT according to Joseph Smith and many other Mormon prophets. Do you really know your Mormon history? Have you read "Under the Banner of Heaven"? "Celestial wives" has been a fundamental belief of Mormons since the mid-1800's until the practice was forced to go underground by the U.S. government. Smith says Mormon men become Gods and get their own moon orbiting Planet Kolob which is filled with celestial wives. Read your history. And by the way, Mormonism has a long history of "lying for the lord". Nothing I say here is untrue or controversial, its all in the history books if you choose to look.

  • 11. Steve  |  June 28, 2012 at 4:44 am

    True Mormon history is kept from people on purpose. It's not erased, but it's kept hidden and harder to find.

  • 12. Robroberts2009  |  June 27, 2012 at 7:45 pm

    … Maybe you'll get into heaven without multiple wives, but once you are there, the party begins …

    Was polygamy ever a requirement in the Mormon Church?

    In an 1884 Mormon Church general conference, church president John Taylor asked for all monogamists serving in ward bishoprics or stake presidencies either make preparations to marry a plural wife or to offer their resignations to the church office. (Abraham H. Cannon Journal, April 6, 1884, Vol. I pp 177-8)

    Monogamous marriage has also been condemned by the Mormon Church as an evil system set up by the devil. For decades the church criticized monogamy and declared polygamy as "the only marriage system in heaven." (See: Mormon Marriage Teachings)

  • 13. Guest  |  June 27, 2012 at 12:50 pm

    One issue that has not been lately discussed is the potential recusal of Justice Kagan from Prop 8 case should it reach the Supreme Court. During her nomination process in the Senate she indicated that she would recuse herself from cases in which she was involved as Solicitor General. She has also consistently done that. I seem to recall that Prop 8 case would have been mentioned at some point during the nomination process. Anybody know more about that?

    If Justice Kagan indeed were to recuse herself, that would obviously make it harder for the equal marriage advocates to prevail in the Supreme Court (although I understand that in the case of a 4-4 split the lower court ruling would stand and Prop 8 would thus be overturned).

  • 14. Mark M. (Seattle)  |  June 27, 2012 at 1:21 pm

    I don't believe Justice Kagan has had anything t do with Prop 8 as SG or otherwise. I could be wrong, but I see no reason she would need to consider a recusal……
    Please correct me if I am wrong


  • 15. Scott Wooledge  |  June 27, 2012 at 1:37 pm

    As I recall she may have handled some DOMA cases as Solicitor General, which the right wing would mean she can't touch anything with the gay on it. It's not really convincing that any work she did on DOMA contaminates her on Prop 8.

    I don't know what she'll do. Both Scalia and Thomas haven't recused themselves on issues where their involvement has been considerably more intimate. But IOKIYAR and the left caves all the time when the right demands a double standard.

    At least we're coming into both DOMA and Prop 8 from a position that a 4-4 ruling is a win. If we win Kennedy's coveted vote, Kagan's is superfluous. If we don't get Kennedy's vote, we're probably f-ed however Kagan votes.

  • 16. Larry  |  June 27, 2012 at 2:23 pm

    If I understand the system correctly, a 4-4 tie affirms the appeals court decision, but isn't binding precedent for any future courts (so for instance, there wouldn't be any Supreme Court decision on what level of scrutiny to apply).

  • 17. B&E  |  June 27, 2012 at 2:31 pm

    I just don' t understand why a large group of legally wed SS partners who were married in CA 2008, NY, or DC yet living in a State with a constitutional ban could not form a class action and appeal directly to SCOTUS on the grounds of full marriage equality.

  • 18. Gregory in SLC  |  June 27, 2012 at 2:42 pm

    I'll join that suit! (living in UT)

  • 19. Scott Wooledge  |  June 27, 2012 at 2:57 pm

    They could file a class-action lawsuit, but not apply directly to the SCOTUS. They'd still have to go through trial and appeals court to get to the Supreme.

    And a number of the DOMA challenges such as GLAD's Pederson, the Servicemembers Legal Defense Network's and Immigration Equality cases are precisely that; a collection of multiple couples legally married by their state, but wrongly denied equal benefits from the Federal Government.

    But the number of plaintiffs doesn't give your legal arguments more wait in a court of law, however. The principle of the law is defensible, or it is not, regardless of how many people are affected by it. (It's mostly the court of public opinion where the number of people something hurts begins to influence thought.)

    This is likely the reasoning for these groups signing up multiple plaintiffs, to have more spokespeople for the TV machine.

  • 20. AnonyGrl  |  June 28, 2012 at 8:12 am

    In terms of educating the public, class action suits with numerous plaintiffs are quite useful, in a couple of ways. First, they show that it is not just a few "malcontents", that these issues affect many friends and neighbors, which is a good thing. Second, it gives us a better chance at putting together statements from a wider variety of family types, and finding ones who speak well and look good on camera, which really does count. The more diversity we present and the better spoken we are, the better we look… it is not really "right" but it is how publicity works.

    And doesn't a class action suit also lead to a wider ruling, legally? The concern at one point was that only the plaintiffs in Perry v. Brown would get to marry (ok, it was a very SMALL concern, but still). Wouldn't making it class action necessarily broaden it?

  • 21. Scott Wooledge  |  June 28, 2012 at 1:22 pm

    I don't believe a class action is what broadens a ruling. That's legal mechanism that relates to fascia challenges, whether a law is inherently flawed, or just flawed as it relates to a person's specific circumstances.

    Edie Windsor, a single plaintiff singularly managed to take down the DOMA law in all applications in Windsor v. USA. That was not a class action suit, but delivered a broad victory.

  • 22. John D  |  June 27, 2012 at 2:57 pm

    What is their deadline for filing an appeal to the Supreme Court? Is it lengthened while the Court is out of session?

  • 23. Scott Wooledge  |  June 27, 2012 at 3:35 pm

    H8ters have 90 days from the day the Ninth turned down a second appeal (which was June 5).

    Which puts Prop 8 defender's deadline at first week of Sept. I hear AFER will have 30 days to respond. Which could mean end of September, first week of October…

    Court usually, typically, returns a response in 4-6 weeks after both parties weigh in.

    Which oddly enough means final word from the SCOTUS could be ripe on election day. It very likely drop anytime in the two weeks before or two weeks after.

    It could move up of course if Prop 8 Defenders file sooner than their Sept deadline.

    Speculate as you wish on what ramifications, if any, either answer could have for the election and our ballot fights.

  • 24. Mike in Baltimore  |  June 28, 2012 at 1:11 am

    The question I have is if SCOTUS doesn't accept a case, will it fire up, or mentally defeat, the H8ters on both Prop H8 and DOMA?

    Part of me says it will fire up people. Another part of me says it will defeat them, or at the very least dampen their 'enthusiasm'.

    As to an AFER response, it usually responds well before any deadline. I wouldn't expect a variance now (unless it wanted to try to avoid a pre-election day SCOTUS decision on whether to hear the case or not). Maybe it depends on the polling data when the request by the H8ers file?

  • 25. AnonyGrl  |  June 28, 2012 at 8:21 am

    I think that a decision from SCOTUS to hear the case that comes before the election fires up Republicans who get to do a big "told you so!" and pretend this means they are winning, and NOM will hit everyone up for bigtime fundraising. One NOT to hear it doesn't fire up anybody much except US who will, at that point, have actually won. I don't think it hurts, as far as Democrats go, to have won at that point… but I don't know that it helps all that much.

    I think if the decision comes after the elections, to not hear it pumps up Democrats for long term Presidential campaigning, and one to hear it pumps up Republican fundraising efforts on the grounds that they MUST elect Romney to get a Constitutional Amendment against us in the works ASAP. I have no fear that such an Amendment would ever pass.

    I don't know that SCOTUS will time it for political impact, but if they do, I would say that a pre-election decision either way means they support Obama for re-election, post election, mostly if they take the case, means they support Romney, no matter how they rule on it eventually. If they are interested in influencing the Congressional elections, I would think a pre-election decision to take up the case would mean they favor a Republican Congress. Of course it is the Presidential election that will really determine the makeup of the court for many years to come, so that is the one I would be looking at.

    Of course, that is a lot of stew to make from one oyster, and I could be completely wrong. 🙂

  • 26. Str8Grandmother  |  June 28, 2012 at 7:35 pm

    Scott I am relying on memory here but when you said, "The Lambda Legal Nevada case in federal court still holds the potential to be the gay Loving v. Virginia." I don't believe it does. If memory serves me right the Nevada case is "We have Civil Unions which is second class Marriage." This very well could go down exactly like Prop 8 appears to be going down. Advertised as the case for Same Gender Civil Marriage in 50 States but then narrowly ruled to only apply to California.

    Nevada seems like a repeat of that. If your State gives you robust Civil Unions then that is discrimination you should get full marriage. What about the vast majority of states who have nothing, no civil unions no domestic partnerships they don't look at ALL like Nevada. Again another narrow ruling that does not help the people living in states without Civil Unions and then of course NO State is going to ever give Civil Unions again because that means automatic Marriage.

    Maybe you are better versed than I am but I don't see Nevada doing a thing for anybody if they don't live in a State with Civil Unions. I just see another very narrow ruling. So we basically have nothing in the pipeline at all. And we sure would put a stop to Civil Unions in other States.

    I am the odd man out and for sure, and a very small minority, but I am all for Prop 8 going to the Supreme Court I don't think they will loose the case, the worst that will happen is it is a narrow ruling and applies only to California. I have read practically every single document in the Prop 8 Case have read, oh hundreds of articles, and I just do NOT think we will loose. I don't. I believe in the case, we have the legal dream team on Prop 8 we really do. And we are right. One State has to be the one to take the gamble and go before SCOTUS why NOT this one? Again it is not our decision, the decision will be made by the Supreme Court whether they take it or not. As for me speaking from my very minority opinion and feeling a bit naked about that frankly, I would be happy to see it finally before SCOTUS. I would like DOMA to get there FIRST but I do want Prop 8 to get there 2nd.

    I would way way rather Prop 8 went to SCOTUS before Nevada. A Narrow Ruling on Nevada would drop an iron curtain on any new state putting in Civil Unions. Prop 8 does not do that, if there is a narrow ruling it is NOT going to be about Civil Unions in Prop 8. Colorado is trying right now to get Civil Unions. Just imagine for a moment that 2 years ago a Federal Judge ruled that Civil Unions are discriminatory and people should have the right to Marriage. Would Colorado today have a fighting chance for Civil Unions? My argument is predicated on what I remember about the Nevada case, so I can stand to be corrected.

  • 27. Scott Wooledge  |  June 30, 2012 at 12:40 pm

    You're perhaps correct. It's a long way from the SCOTUS, and it's possible a judge could interpret the NV case as the right to same-sex MARRIAGE is undeniable. Full Stop.

    But there's a lot of other ways it could play out in trial, appeal and ultimately the SCOTUS. Which obviously you point out correctly.

  • 28. Prop 8 Trial Tracker &raq&hellip  |  July 1, 2012 at 6:20 pm

    […] for reelection in November.  Scott Wooledge, an activist and writer on Daily Kos, wrote the next installment in our legal symposium, analyzing the risks and costs of taking the Prop 8 case to the Supreme […]

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