If you read the question again, you might notice the careful choice of words: this appeal is not just about the constitutionality of Prop 8; more accurately, the appeals court is passing judgment on whether Judge Walker erred when he declared Prop 8 unconstitutional. The difference matters. From Day 1 of Civil Procedure and Federal Courts, law students know that it's a lot easier for an appellate court to affirm a decision below than reject it. This is what makes this case so important.
The psychological, sociological, and historical evidence that the American Foundation for Equal Rights (AFER) and its legal team of Ted Olson, David Boies, and a host of others so skillfully offered at trial was left unanswered by Protect Marriage at trial. In fact, Judge Walker stated numerous times that this or that factual finding was offered unopposed, with no evidence to counter its veracity. So, in the Perry case, the record shows all the psychological evidence that shows that gay parents make excellent parents, that their children grow up to be just as productive as the children of heterosexual parents, and that the state's other justifications for a ban on same-sex marriage have no foundation in facts. The record is also devoid of any evidence contradicting the conclusion that marriage is not about procreation, but about an enduring and emotional union of two people in love.
A federal appellate court is limited to the record before it. It cannot make decisions based on outside information or anything not raised at trial. The court also has to approve factual findings unless they are "clearly erroneous," and while George Rekers and Tony Perkins and their ilk might disagree with the findings, the findings are certainly not "clearly erroneous" and there is no evidence to suggest they are. A positive Ninth Circuit decision, then, will not only affirm a right to marry under federal law, but it will affirm these facts and conclusions we all know to be true as a matter of federal law, and these facts can be used in other gay rights cases.
This is the main reason why Perry v. Brown is so important, and why we should thank AFER, its leadership, and its legal team for the progress they are making on behalf of all gay persons. No hypothetical ballot initiative to overturn Prop 8 — even if successful! — could help every other gay rights matter like a positive Ninth Circuit decision in Perry could. Advocates would have circuit court precedent for the true equality of gay people as a matter of fact and law, and that would play well in cases related to the Defense of Marriage Act, adoption and surrogacy, employment discrimination, federal benefits for gay service members, anti-harassment laws, and so on.
Third, did Judge Ware abuse his discretion when he denied Protect Marriage's motion to vacate the lower court decision on the grounds that Judge Vaughn Walker should have recused himself? As we have discussed, Protect Marriage's basis for that motion was that because Judge Walker is gay and was in a long-term relationship at the time of trial, he should not have passed judgment on Prop 8 because he may, at some point in the future, want to marry. Judge Ware dismissed that argument as pure conjecture and offensive — that a gay man cannot be impartial is the stuff of insidious stereotypes. We expect the Ninth Circuit to uphold his decision.
UPDATE: What is the standard of review for discrimination on the basis of sexual orientation?
When Perry began, the governing theory was that sexual orientation discrimination gets the lowest standard of review — rational basis — which means that any discrimination against gays can be justified if there is "any conceivable … legitimate state interest" behind the discrimination. Even though that is a low standard, the Supreme Court has found that certain anti-gay discrimination cannot even pass that hurdle (Romer and, perhaps, Lawrence). Judge Walker concluded that Prop 8 does not pass rational basis review by finding that all the state's possible justifications were baseless and just a smoke screen for anti-gay animus. He also offered an alternative holding that sexual orientation discrimination deserved strict scrutiny because of the history of anti-gay discrimination and the immutability of sexual orientation, among other factors. Since then, President Obama has called for heightened scrutiny — between rational basis and strict scrutiny — for state action that discriminates on the basis of sexual orientation. The Ninth Circuit has the first opportunity to declare a standard of review for anti-gay discrimination in this new legal context.
What happens after tomorrow?
Unfortunately, even if the Ninth Circuit affirms Judge Walker's decision, we could not automatically marry our loved ones. The court would have to lift the stay of Judge Walker's order, which it is unlikely to, given the expectation of future appeals.
The losing side has the option of petitioning for a rehearing en banc, which is a reconsideration of the issues by more judges (likely, 11) than just the three on the current panel. A decision on that motion could take a few weeks, but if a rehearing is granted, there could be another hearing. Given how important this case is, an en banc rehearing seems likely. Again, the losing side could then petition for a writ of certiori before the Supreme Court, asking the nation's highest court to take the case, or any part of it. If Perry reaches the Supreme Court, it will most likely be in the Court's next term (2012-2013).
What does this all mean?
Many of us are expecting a positive omnibus decision covering standing, merits, and the motion to vacate. I think the denial of the motion to vacate will be affirmed, standing will be granted, and Judge Walker's conclusions of law will be affirmed. And, when that happens, it will be the greatest day in gay rights history in this country since Lawrence v. Texas. Marriage is a proxy fight for so many things: adoption, surrogacy, access to state entitlements, equality in general. But more importantly, Perry is the vessel through which our federal law will finally recognize the inherent value of who we are. If we can marry, and our law dispenses with the last vestiges of state rationales for anti-gay discrimination — all of which have been levied against us in Perry — then states will have few reasons to discriminate against us in other areas. If we can marry, we will finally be able to say, "We belong."
Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.