The San Francisco Marriage Case, Part Two: The Supreme Court

(Originally posted on Huffington Post.)

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, it 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 9th 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 9th Circuit, I think the court will certainly take the case. A win at the 9th 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 Vaughn 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 9th 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.