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A Prop 8 Supreme Court decision: The possible outcomes


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. Tuesday’s contribution was from Ari Ezra Waldman, who teaches at Brooklyn Law School and writes at Towleroad. Wednesday, LGBT activist Scott Wooledge provided his take. Thursday, our own Vienna Hagen aka AnonyGrl sent us her take.

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 Bill Santagata

“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?”

The answer is yes because the odds are on our side. Not only do we have Justice Kennedy’s pro-gay history as the swing vote on the court, but the number of possible avenues are weighted in our favor. Most discussion of Perry v. Brown hinges on whether or not the Supreme Court will affirm the 9th Circuit decision. In reality, there may be as many as four possible outcomes given the various weaknesses (summarized by Ari Ezra Waldman in his guest article) in the narrow appellate ruling based principally on Romer v. Evans. These possibilities are:

1. The Supreme Court affirms the 9th Circuit decision as-is, thus broadening the scope of Romer in a way that sets binding precedent throughout the entire country. This could positively affect cases against other anti-gay laws that might spring up (like “Don’t say gay” bills).

2. The Supreme Court reverses the 9th Circuit decision, finding Proposition 8 to be constitutional. This would be devastating and it might definitively establish that rational basis review is the proper standard of scrutiny for anti-gay laws.

3. The Supreme Court rejects the 9th Circuit decision as an over-reach of Romer, and remands to the appellate court to review the original finding of the District Court (that same-sex couples have a constitutional right to marry). It would be unusual for the Supreme Court to jump right in and answer this question itself before first getting an opinion from the Circuit Court, but this would be spectacular news as it would show the Supreme Court is willing to rule on this issue favorably. The conservative anti-gay justices would probably not vote for such an option, choosing scenario #2 instead, meaning that if the Supreme Court were to take this route, it would probably mean that they are ready to declare a right to marry for same-sex couples.

4. The Supreme Court affirms the judgement of the 9th Circuit but on different grounds. The Court holds that it is not the “taking away of an existing right” that is unconstitutional, but rather the separate-but-equal system it left in place. Thus it affirms most of the logic of the 9th Circuit, that a symbolic in-name-only distinction advances no rational basis, but broadens it to include all other states that have similar separate-but-equal systems. There is a legal basis for this. Romer v. Evans was not decided merely because it took away existing anti-discrimination protections, but rather the scope of the protections implicated. The Court wrote:

“Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of “homosexual, lesbian or bisexual orientation, conduct, practices or relationships.” Colo. Const., Art. II, §30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits ****all legislative, executive or judicial action at any level of state or local government designed to protect the named class****, a class we shall refer to as homosexual persons or gays and lesbians.”

While the “taking away” is inherent in Proposition 8, the scope of the damage it does to the body of gay rights in California does not align with the finding in Romer. Proposition 8 does not rescind **all** state actions to protect the named class (gays and lesbians) as homosexuals still have all the state-level rights of marriage intact.

This result would have both positive and negative consequences: we will win more marriage equality states immediately but no state can make the stepping stone of civil unions, which while undignified, gives practical benefits to same-sex couples while being much less controversial.

If find this final reasoning to make the most sense, legally. The 9th Circuit decision is too narrow and too dependent on Romer to be effective, yet the responsibility of judicial restraint makes this case a poor opportunity to declare a universal right-to-marry. If the Supreme Court were to take this case, my bets would be on Scenarios 1 as the likely outcome with 4 a very real possibility. I do not see Justice Kennedy voting against one of these two narrower rulings. And in any event, it is worth remembering that there is no Supreme Court ruling that cannot be overturned.

Bill Santagata is an M.A. candidate in French literature at New York University in Paris with an interest in Equal Protection and Establishment Clause case law.


  • 1. MightyAcorn  |  June 29, 2012 at 9:15 am

    Okay, who forgot to close the italics tag?

  • 2. Adam Bink  |  June 29, 2012 at 11:14 am


  • 3. Kathleen  |  June 29, 2012 at 9:19 am

    Thanks for the post. Would you please clarify your option #3? I don't understand the reason you're giving that the SC might remand the case to the 9th Circuit. What, exactly, would the SC be asking the appellate court to do on remand?

  • 4. Bill S.  |  June 29, 2012 at 12:36 pm

    They could remand the case to the 9th Circuit to answer the broader constitutional question of whether or not same-sex couples have a right to marry.

  • 5. Scott Wooledge  |  June 29, 2012 at 12:43 pm

    As they disagree with the Ninth appeals when they said, "we don't have to answer the fundamental question of if any same-sex couples can ever be denied the right to marry…"

    It'd be the SC saying, "Oh, yes you do. Now go back, consider it, and tell us what you think…"

  • 6. MightyAcorn  |  June 29, 2012 at 9:24 am

    I still have a funny feeling that they'll grant cert to have their say on the federal standing issue, and maybe even ignore the stuff pertaining solely to, er, California State law. Which would be fine as the Ninth's ruling on the marriage equality part *might* stand, though it would delay implementation for another year or two while the case is considered.

    So here's my question: if The Supremes take the case and decide initiative proponents do not have Article III standing, would that mean Walker's ruling would be final, though sadly non-precedential at the national level?

  • 7. AnonyGrl  |  June 29, 2012 at 9:33 am

    I think that the standing issue as far as the Ninth Circuit case is concerned, is resolved. So even if SCOTUS takes up the case and turns down the standing at the FEDERAL level, the Ninth Circuit ruling is the one that will stand, it will not revert all the way back to Walker's ruling.

    The reason I have for thinking that is that the only way the standing would be overturned at this point would be on appeal, and that ship has sailed already. Boies and Olsen can appeal it again IF SCOTUS takes the case, but that would only affect it at the Supreme Court level.

    Someone feel free to correct me if this is not right.

  • 8. Kathleen  |  June 29, 2012 at 9:57 am

    If the Supreme Court were to decide that the Proponents lacked Article III standing, that would mean they didn't have standing to appeal the case in the first place. In that scenario, the Supreme Court would remand the case back to the 9th Circuit with instructions to dismiss the appeal for lack of standing. So, as MightyAcorn suggests, the only ruling that would stand would be Walker's original district court decision.

  • 9. Kate  |  June 29, 2012 at 10:19 am

    Forget the tip — I'll give you the whole hat!!!!!!!!

  • 10. MFargo  |  June 29, 2012 at 12:10 pm

    I like the language in Judge Walker's ruling soooooo much, I wish it were the final word on the matter. Although I appreicate broader implementation would be ideal.

  • 11. Scott Wooledge  |  June 29, 2012 at 12:46 pm

    That would be my take on Supremes deciding Alliance Defense Fund did not have standing. The entire Appeal would be erased.

    Presuming that means no one but the state of California could have standing.

    (Really, I never understood how the Ninth concluded ADF satisfied the Article III requirement to show that the appellate party would suffer harm by letting the judgement stand.)

  • 12. Bill S.  |  June 29, 2012 at 1:15 pm

    It's not the ADF; it's the official ballot proponents who appealed.

    It's always a possibility that the Supreme Court could vacate the appeal on standing, but the 9th Circuit pretty much made the issue watertight by asking for the opinion of the California Supreme Court. Supreme Court precedent says that if state law allows ballot proponents to represent the state in court on appeal, then it's okay. The California Supreme Court says California state law allows for that.

    Also, the first sentence of the final paragraph should be: I (not "If") find this final reasoning to make the most sense, legally. That might have been a typo on my part, sorry!

  • 13. MFargo  |  June 29, 2012 at 2:53 pm

    Bill, do you know the likelihood (or even the possibility) that SCOTUS could say CASC erred in interpreting the California Constitution. Would they step into that?

  • 14. Kathleen  |  June 29, 2012 at 3:44 pm

    The Supreme Court only gets involved in state law if federal law trumps it for some reason. The CASC was interpreting the California Constitution and is the final word on interpreting the state's constitution.

  • 15. Kathleen  |  June 29, 2012 at 3:47 pm

    Should add.. that's not to say that SCOTUS couldn't decide that the 9th Circuit misapplied the CASC's ruling as it relates to federal law (though I don't see that as a strong possibility). But SCOTUS has no authority to tell the CASC how to interpret the state's constitution.

  • 16. MFargo  |  June 29, 2012 at 4:56 pm

    Thanks, Katheen.

  • 17. Mighty Oak  |  June 29, 2012 at 10:01 am

    Thanks guys, lots to think about. Wurra wurra wurra. I'm ready for October to be here already.

  • 18. Sagesse  |  June 29, 2012 at 9:50 am


  • 19. Straight Dave  |  June 29, 2012 at 10:29 am

    I don't see option #4 as a viable approach, at least as I understand what's being implied by it. The implication is never spoken by anyone, but I feel it is a lingering unanswered question.

    Certainly SCOTUS could rule that separate-but-equal is not good enough. That would take care of CA and a few other states. (I wish Brown v Board of Education were cited more frequently).

    But the implication in such a ruling would be that lesser forms of CU/DP (or nothing) that don't pretend to be very equal might be acceptable. But it's not the darn-near-equal irrationality that makes these things unconstitutional, but the simple fact that they are not equal in the first place. You can't cure "not quite equal enough" by making them even less equal, like RI's watered down CU's. Otherwise, CA would be able to cure its Prop8 deficiencies by removing a few of the CU rights until it fell below the irrationality threshhold (vs marriage).

  • 20. Straight Dave  |  June 29, 2012 at 10:29 am

    (Part 2)
    If SCOTUS goes down the separate-but-equal path, it can't reasonably avoid scouping up all the separate-but-not-equal cases in the same motion. Imagine if Brown v Board said that it is not OK to have separate schools for each race, even if they are nominally of equal quality, but that it is OK to give blacks shabby schools or even no schools at all. Somehow….I don't think so.

    Once you get rid of the separateness, which is the real issue, all questions about degrees of equality or equivalence magically go away. It is just not rational to have a legal argument about how much more UN-equalness is required in order to make something constitutional. Surely, Mississippi cannot be on more solid constitutional ground regarding equality than CA. It's just that no one dares take up that case yet because humans are flawed and even judges have their gut-level emotions. Certainy a wise strategic move at the moment, but it's not because MS is more compliant with the Constitution.

  • 21. Bill S.  |  June 29, 2012 at 1:18 pm

    The thing is that race triggers strict scrutiny. So giving blacks shabby schools would still trigger strict scrutiny and be overturned.

    If the Supreme Court is not going to declare gays to be a suspect class, and use only rational basis, then it is possible that states could have a rational basis in wanting to recognize only hetero relationships (as the 8th Circuit found in Citizens for Equal Protection v. Bruning). However, there is no rational basis for giving them all those rights but symbolically withholding only the title of "married." No possible material government interest could be advanced by a symbolic distinction.

  • 22. Bill S.  |  June 29, 2012 at 1:19 pm

    This is also the precise question that is being raised in the Nevada federal lawsuit. The plaintiffs there are also not arguing a constitutional right to marry, but rather a rational-basis, separate is not equal argument.

  • 23. Str8Grandmother  |  July 1, 2012 at 10:31 am

    The only reason that they have strongly put forth and they have done it consistently is the "De-Institutionalization" of Marriage. That is what they are calling their rational reason. Remember Cooper stating in the Oral Arguments to Rehinhardt/Hawkins/Smith that they never have claimed that same gender civil marriage hurts any persons marriage, it hurts the "Institution of Marriage." But exactly how, they don't know and cannot define.

  • 24. Mike in Baltimore  |  July 1, 2012 at 6:48 pm

    Except it is not just "withholding only the title of 'married.' "

    The GAO has found at least 1138 Federal laws and regulations that withhold benefits to same gender married couples that are allowed to married heterosexuals (through December 31, 2003).

    Things like same gender married couples not being able to file joint Federal tax returns; same gender married couples being denied the ability to add their spouse to Federal health insurance policies; same gender married couples being unable to name their spouse as 'surviving' for Social Security purposes; same gender married couples being unable to move to ANY of the 50 states, plus territories, districts, etc., and still be considered 'married' in each and every one of them; same gender married couples being able to get VA benefits, PX privileges, based on the military status of one member of the married couple (unlike heterosexual couples); etc., etc., etc. (such as Federal estate taxes owed, or not).

    It is MUCH more than "withholding only the title of 'married.' "

  • 25. Straight Dave  |  July 1, 2012 at 10:20 pm

    From a state's perspective, that is pretty much the only difference – at least as things stand today due to DOMA. However, once DOMA falls, a state will knowingly be sending its citizens out into the world with a second-class badge, thus exposing them to all the disadvantages you cite. That's why dumping DOMA is so critical. It changes the whole balance of costs and benefits.

  • 26. Straight Dave  |  June 29, 2012 at 10:34 am

    (Part 3)
    I guess my conclusion is that SCOTUS might find it difficult to require marriage equality in the states with civil unions but not in all the rest. I suspect that if MS was given a "no schools" option, it might have considered taking it.

  • 27. Jamie  |  June 29, 2012 at 12:18 pm

    MS certainly had the option of eliminating schools following Brown. When Californian's voted on Propo 8, they could have voted to eliminate marriage laws and give everyone civil unions. They could have done any number of things. What they shouldn't be allowed to do is discriminate against one group of people.

  • 28. Ann_S  |  June 29, 2012 at 12:21 pm

    Right. Some southern communities closed public swimming pools rather than integrate them, and there was nothing that could be done about it. Hence the rise of country clubs in many places.

  • 29. MightyAcorn  |  June 29, 2012 at 5:30 pm

    Right, and the Kern County Clerk's office announced it was not going to perform any weddings anymore after the CASC granted same-sex marriage rights in 2008. The County claimed they quit due to the expense, but the reason was later proven to be religiously-fueled animus.

    The very next day Kern County was hit by a massive wildfire. Maybe if they had more integrated swimming pools in Kern that wouldn't have happened. 🙂

  • 30. Mike in Baltimore  |  July 1, 2012 at 6:54 pm

    Virginia did provide for private 'academies' after the Civil Rights laws were passed in the mid-1960s, and left the public schools for the 'coloreds'. Eventually, the parents found that the public schools provided a much more than adequate education, and the vast majority of private 'academies' gradually went out of existence.

    Now, some of the best high schools in the nation are the public high schools in Northern Virginia (and certain counties in Maryland, Montgomery and Howard among them).

  • 31. Jay Jonson  |  July 4, 2012 at 6:51 am

    This was NOT the case in Louisiana, where the "Christian academies" and Catholic parochial schools thrive, while the public schools are dreadful.

  • 32. Straight Ally #3008  |  June 29, 2012 at 11:33 am

    I'm starting to think that Roberts, with an eye on his duty and legacy as chief justice, will take into account the inexorable shift in public opinion and vote on the equality side in Prop 8 and DOMA cases. I don't see that happening with Thomas or Scalia, and probably not Alito.

  • 33. Lymis  |  June 29, 2012 at 11:51 am

    I still want to see how Scalia weasels out of his Lawrence dissent, where he bluntly said that if Lawrence stands, there is no justification for denying marriage equality. It would be delicious if he wrote a separate grumpy opinion affirming marriage equality in a scathing, "I told you so, you perverts" tone.

  • 34. Scott Wooledge  |  June 29, 2012 at 12:57 pm

    Scalia will weasel out same way he always does, SHAMELESSLY.

    He dissented then, he'll dissent again.

  • 35. Bill S.  |  June 29, 2012 at 1:20 pm

    He'd dissent and say "And I'd overturn Lawrence if I could too! Neh!"

  • 36. Tyler O.  |  June 29, 2012 at 12:16 pm

    It would be sweet, sweet justice to get a 7-2 or even 8-1 on DOMA. At worst it will be 6-3. I simply don't see Kennedy or Roberts voting against this.

  • 37. Jamie  |  June 29, 2012 at 12:24 pm

    I agree, Roberts is a wildcard right now. I think he might be a marriage equality supporter. I have a feeling that he sees the craziness coming from the right Alito, Thomas, and Sacalia and wants to get as far away from them as possible on some of these social issues.

    To be fair, in order to allow Prop 8 to stand, they will have to find that either gays and lesbians are a suspect class, and that Prop 8 passes heightened scrutiny, or that gays and lesbians aren't a suspect class. I don't think Roberts is likely to sign onto either of those options.

  • 38. Jay Jonson  |  July 4, 2012 at 6:54 am

    Maybe, but the one I worry about now is Kennedy himself. The dissent he wrote in the Obamacare case is as crazy and radical as decisions and dissents written by Scalia, Alito, and Thomas.

  • 39. Scott Wooledge  |  June 29, 2012 at 12:56 pm

    I have to say, his vote in favor of preserving ACA makes me slightly more optimistic he may be a vote for "our side" on Prop 8 and DOMA.

    I suspect he recognized that striking down ACA would do the court PR serious harm, and took one for the team. I think he'd recognize delivering another Hardwick on the issue of marriage equality would be a history recorded black mark on what is "the Roberts Court." One he'd have to live with for the rest of his life.

    Which isn't to say I'm optimistic about him, just less hopeless that he is completely divorced from the political reality we are creating. (And the fact that so many of our allies high courts and legislatures are breaking our way, globally.)

    Fighting marriage equality isn't a priority for the Corporate Wing of conservatism, which Roberts seems more a part of then the theocratic wing.

  • 40. Straight Ally #3008  |  June 29, 2012 at 1:12 pm

    With DOMA in particular (my guess is that they'll pass on hearing Prop 8 and CA will get equality reinstated), Roberts would have to overturn multiple federal court decisions to let it stand, and it's less of a clash with Congress since DOMA went into law back in 1996 and many former supporters have rejected it.

  • 41. steven  |  June 29, 2012 at 6:55 pm

    Very interesting comment by Justice Roberts–

    Responding to a question about his summer plans, Roberts quipped that he thought his planned trip to Malta to teach a class was a “good idea.”

    He delivered the joke Friday at a federal court conference at a posh Pennsylvania resort.

    Roberts declined to answer a question about the landmark opinion issued Thursday. But he says he hopes the court will be remembered for “protecting equal justice under the law."

    “protecting equal justice under the law." is very interesting—————–

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