Ari Ezra Waldman | DOMA | Gay Marriage | News | Proposition 8

Proposition 8 and DOMA Cases: Would It Be More Favorable for One to Reach SCOTUS First?


Today, the Ninth Circuit Court of Appeals announced that it will not rehear the appeal in Perry v. Brown, the federal case challenging the constitutionality of Prop 8. That means that one of two things happen next: Either the antigay forces behind Prop 8 lay down their limited weapons and Judge Vaughn Walker's ruling ordering California to perform marriages for same-sex couples goes into effect (after 90 days) or, more likely, proponents take the case to the Supreme Court.

Olson_boiesAt issue was the proponents' petition for an en banc rehearing of the appeal, the appeal that resulted months ago in an incremental, yet favorable decision in favor of marriage recognition for California's gay community. An en banc (French for "on [a] bench") rehearing is essentially a redo of the appeal before all -- or, in this case, more -- judges on a court. First, a majority of the judges on a court must vote in favor of rehearing; then, a majority of those empaneled (the Ninth Circuit uses 11 judges; small circuits simply use the entire bench) would have to come to some decision, either affirming or rejecting the decision of the 3-judge panel. Here, both a majority of the original panel and a majority of the remaining judges decided not to rehear the case.

That result is not surprising. Not only is the Ninth Circuit a majority progressive court, but the Perry decision was so exceedingly narrow that it is not clear to some jurists and scholars how the Supreme Court could reject its reasoning. Notably, I am not one of those scholars. I think Judge Reinhardt's analysis of Romer in his opinion in Perry is questionable.

In any event, the ruling today lets stand Judge Reinhardt's decision that Prop 8 effectuated a taking away of rights granted to gay persons under the California Constitution and it did so through pure animus that the majority felt toward a traditionally unpopular and disfavored group. That much that Constitution cannot abide.

This decision comes on the heels of another narrow, yet favorable decision in Gill v. OPM, where a 3-judge panel of the First Circuit that affirmed the utter unconstitutionality of the Defense of Marriage Act (DOMA). The question now becomes: Which case do we want first? Perry or Gill?


In some ways, the cases are quite similar. Like the Ninth Circuit in Perry, the First Circuit in Gill did not use heightened scrutiny to declare the underlying law unconstitutional. Both courts used a form of "rational basis plus," or "rational basis with bite," though sometimes not in so many words, to review legislation that affects traditionally disfavored minorities. Perry concerned the rights of gay persons to marry at the state level; Gill concerned what rights those persons get once they are married.

Both appellate courts issued decisions that were far less broad than they could have been. The Ninth Circuit's Perry decision could have declared that Prop 8's denial of marriage rights for gay persons violated equal protection and due process. Instead, the court merely said that a taking away of marriage rights already granted violated the Constitutional precedent set in Romer v. Evans, where another state's voters took away rights from gay persons simply out of animus toward homosexuality. The First Circuit's decision in Gill could have declared DOMA unconstitutional under a heightened scrutiny standard of equal protection review and/or under the Tenth Amendment or the Spending Clause. Instead, the court used a form of rational basis to declare the law unconstitutional and refused to find antigay animus sufficient or even relevant to the ultimate decision.

But, the cases are profoundly different. Perry reaches the heart of individuals' power to wed the man or woman they choose, but Gill concerns those things we get or are entitled to once a state marries us. It is in part for this reason that may gay rights scholars, appellate court advocates, and talking heads think that the best thing for the gay rights movement would be for Gill to reach the Supreme Court before Perry.

After speaking with several scholars, seasoned Supreme Court advocates, attorneys at Lambda Legal, and attorneys at the American Foundation for Equal Rights (AFER), I have gathered some of the reasons for that conventional wisdom. 

1. Gay marriage is more controversial than DOMA.

While many national polls show that an expanding majority of Americans support marriage rights for gay persons, that majority pales in comparison to the majority of registered voters that oppose DOMA. The discrimination inherent in DOMA is evident to many American voters, especially since DOMA does not really touch on marriage rights, perhaps the most controversial political issue on the table today. DOMA is not about marriage; it is about the stuff that comes with marriage. It is a lot harder to argue that we should deny sick spouses health care than to deny a weighted term like "marriage" to people who seem strange to middle America.

2. There are "conservative" and "liberal" avenues to overturning DOMA.

DOMA is uniquely odious to conservative and liberal jurists. To the conservative, DOMA is an example of Congressional overreach: Congress went beyond its specific Article I powers to to intrude upon an area of law exclusively and traditionally reserved to the States. To the liberal, DOMA is an example of obvious discrimination that violates the Constitutional principles of equal protection. It denies similarly situated persons the exact same rights that are freely granted -- even, taken for granted -- by other persons. Because of this rare confluence of arguments against DOMA from both sides of the legal and political spectrum, Gill has the unique opportunity to bring together conservatives and liberals on the Supreme Court in a strong statement in support of gay persons' quest for honor.

3. The Supreme Court may be less uneasy about overturning an act of Congress than overturning a majority vote of a state population.

Striking down DOMA involves striking down an act of Congress; striking down Prop 8 involves rejecting the more direct will of the people. While both could be considered "judicial activism" in the strictest sense of that overused phrase, judges on a Supreme Court so attuned to how they are viewed in public and how they protect their judicial charge may be less willing to reject the direct voice of the people as opposed to an act of Congress that so many judges and scholars have already rejected as foolish and immature.

4. DOMA is an incremental step toward full marriage rights and full equality, respect, and honor.

The skinny on the great debate inside the gay rights community is that some advocates wanted an incremental approach to securing marriage rights while some others saw an opportunity to achieve the goal through blitzkrieg. Anyone who peddles that simple tale takes you down a rabbit hole fit for Alice herself. The gay community is united in its quest for marriage rights; the question is less about strategy and more about creating the necessary legal precedent to secure victory in that quest. Some think that a favorable decision in a DOMA case would make a favorable decision in Perry easier; others suggest that now that Gill has already rejected heightened scrutiny, there is no reason to delay seeking marriage rights, especially since the Perry decision is exceedingly narrow.

I leave these factors for you to consider. Do you think it would be best for Gill or Perry to reach the Supreme Court first?


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.

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  1. Anti-equality groups have already announced their plans to file a case in the SCOTUS.

    Posted by: Johnson | Jun 5, 2012 2:52:39 PM

  2. Assuming that both are likely to be granted cert, what difference could it possibly make which comes first? The Justices and their clerks will have both cases in mind, whichever order they are addressed.

    Posted by: BABH | Jun 5, 2012 2:54:50 PM

  3. Although the decisions are narrowly written, there is no requirement for the Supreme Court to write a narrow decision, regardless of the case they choose to review. In fact, Kennedy in both Romer and Lawrence wrote very expansive decisions.

    It is likely that Kagan will recuse herself from Gill; hence, it may be that we might a 4-4 tie there. That may be a consideration as well.

    Posted by: Jay | Jun 5, 2012 2:58:53 PM

  4. @Jay: 4-4 would leave the 1st Circuit's decision in place, effectively a win. Kennedy would still be the casting vote, of course.

    Posted by: BABH | Jun 5, 2012 3:06:20 PM

  5. I think it makes no difference which case makes it there first as each cases asks different questions.

    However, I think Perry will be denied cert and the original ruling will stand in CA / 9th and Gill will be granted cert and upheld to our favor but the answer to the overall question of a universal constitutional right to same sex marriage will continue to be a long way away.

    Posted by: beef and fur | Jun 5, 2012 3:08:23 PM

  6. BABH,yes a 4-4 tie would leave the 1st circuit's decision in place, but the Supreme Court opinion would have limited precedential power. In effect, DOMA would be stricken in the First Circuit: Massachusetts, New Hampshire, Rhode Island, Maine, and Puerto Rico (if I remember correctly), but it would not be declared unconstitutional outside the first circuit. I wish that Kagan would decide not to recuse herself from this case. Whatever discussions she may have had about DOMA when she was Solicitor General hardly means that she was invested in the law.

    Posted by: Jay | Jun 5, 2012 3:15:23 PM

  7. As a Californian, I am more interested in winning Gill. California does not distinguish between marriage and domestic partnership in the way the state treats these relationships and California will recognize marriages performed in other states, though it will call them domestic partnerships.

    A victory in Gill might well open the range of federal benefits to California couples even if Prop 8 is allowed to stand.

    For me then the tactical question is whether SCOTUS is more likely to affirm Gill before or after it has reviewed Perry.

    Posted by: Rich | Jun 5, 2012 3:16:52 PM

  8. gill: it seems there is a lot to win, and not as much to lose as if perry got granted cert but then reinhardt's decision was overturned; on the other hand, a perry win would obviously be the motherload of victories... so to be cautious, i'd rather go with gill, as i am risk-averse. it sucks for people in states without equality; but at least they can go to an equality state, get married, and we can try and get the federal government to recognize their marriage regardless of their place of residence.

    Posted by: daftpunkydavid | Jun 5, 2012 3:17:38 PM

  9. @Jay: Thanks for the correction, you're right of course.

    Posted by: BABH | Jun 5, 2012 3:21:21 PM

  10. What an utter joke if Kagan were to recuse herself and Scalia, who has made MANY anti-gay statements in public, did not recuse himelf.

    At some point you have to wonder about the legitimacy of the Supreme Court. I really wish they were limited to a 20-year term, so that we did not have to live with these career judges for generations.

    Posted by: jht | Jun 5, 2012 3:26:18 PM

  11. The first question is whether SCOTUS will grant cert in both cases. I'm not so sure. Two gay marriage cases in one term?

    It pretty much HAS to grant cert in Gill. Not so sure about Perry.

    Posted by: Jorge | Jun 5, 2012 3:28:33 PM

  12. JAY, I'm not sure DOMA can be declared unconstitutional only in the 1st circuit. It's federal law. If it's unconstitutional in Massachusetts, I believe it's equally unconstitutional anywhere in the U.S. Ari?

    Oh, and I don't think my personal fun vote for Gill being first to reach SCOTUS means a thing, as I don't expect SCOTUS to grant cert to Perry.

    Posted by: Zlick | Jun 5, 2012 3:28:35 PM

  13. I want to go with Prop 8. It ways that once a state grants marriage they can not take it away. DOMA was doomed and the president knows it. That is why the Dems are backing the DOMA replacement known as the RMA. That's right DOMA is going to be REPLACED - not removed.
    The RMA Respect for marriage act solidifies a state right to hate.
    Prop 8 however pretty much says that once a state has that right, it can not be taken away.

    Posted by: chris255 | Jun 5, 2012 3:33:14 PM

  14. SCOTUS is politically influenced to some degree, and I believe that they would prefer to postpone a major decision re marriage equality; I don't believe Perry will be accepted for review. Because Judge Reinhardt's decision was so narrowly written, it will be seen to affect only Californians with little potential to change the status quo elsewhere. I can only hope that Gill will be rejected for cert as well, as I believe we need a change of court personnel (via Obama's re-election) before we can be assured of a fair hearing and success.

    Posted by: My2Cents | Jun 5, 2012 3:35:45 PM

  15. Iagree with "My2Cents." The Prop 8 case affects California only -- not laws pertaining to marriage nationwide. The court could quite easily allowing the ruling to stand, and led couples in California marry.

    Posted by: David Ehrenstein | Jun 5, 2012 3:48:00 PM

  16. Despite claims (by some) to the contrary, the Supreme Court is not entirely apolitical. So it is possible they might 'split the baby' -- accept review in both cases, but then affirm the decision in Gill (so DOMA is unconstitutional as applied to marriages performed in states where such marriages are recognized), and reverse the decision in Perry (so Prop 8 was 'rational' because it didn't affect substantive rights but instead affected 'terminology'). I'm not saying that I agree with these conclusions, but one can see the Supreme Court reaching these conclusions.

    Unfortunately, Gill and Perry are somewhat at odds -- particularly on the 'animus' point: the 9th Circuit found that 'animus' motivated Prop 8 and as a result Prop 8 must fall, but the 1st Circuit found that there was NO 'animus' when Congress decided not to recognize same-sex marriages for federal law purposes. If the Supreme Court takes both cases, it would have to resolve a lot of issues regarding 'animus', and I can't see Justice Kennedy finding that there was 'animus'; he is not someone who generally likes to accuse others, especially government officials, of intentional wrongdoing, hatred or bad faith.

    On another political note, the 1st Circuit decision was unanimously decided by both Republican and Democratic judges; and District Judge Tauro, who issued the trial decision, was a strong Republican. In contrast, the 9th Circuit has a reputation as a liberal, Democratic bastion.

    On timing, the losers in Gill might also be able to ask for rehearing en banc, which could hold up Gill for Supreme Court review.

    On one of the more interesting aspects of all of this, especially Gill: if a married same-sex couple (or the survivor of a same-sex marriage) now lives in NH and is entitled to benefits under Gill , what happens if the couple (or survivor) moves to Virginia or Oklahoma after several years? Can the federal government suddenly say that the marriage is no longer recognized in the new state of residence, so benefits are being cut off?

    On a technical issue, I think both cases would be "appealed" to the Supreme Court on the basis of presenting a federal question, and they would not be the subject of "certiorari" petitions.

    Posted by: MiddleoftheRoader | Jun 5, 2012 3:56:57 PM

  17. Ari's article seems to suggest that DOMA is more likely to win in SCOTUS, but that doesn't necessarily mean it should be the first to go before SCOTUS. For example, if SCOTUS says PROP 8 is unconstitutinal, perhaps only suggesting gays have a right to marriage, it seems to me to be a heck of a lot harder to LATER say the Feds do not have to treat married people equally. On the other hand, if SCOTUS agrees DOMA is unconstitutional first, there's the possibility of a mentality of "we gave them DOMA so now we can punt on Prop 8", i.e, we agree once a state marries same sex couples the Feds must comply, but that's not the same as saying the constitution requires CA or any other state to let same sex couples marry.

    Posted by: Peater | Jun 5, 2012 4:14:35 PM

  18. I don't see how this presentation raises the question of which should be decided first. It's pretty clear that having both cases on the docket will allow the Supremes to split the difference and uphold Gill while overturning Perry. Doesn't matter which comes first. Win one, lose one.

    Posted by: Bingo | Jun 5, 2012 4:18:44 PM

  19. A favorable ruling in Gill would also go a long way toward making Perry functionally irrelevant, possibly even legally irrelevant.

    One of the arguments against marriage equality that seems to carry the most weight with the electorate is the idea that gay couples in domestic partnerships or civil unions already have all the benefits of marriage - and with DOMA in place, while it's not true, it's hard to explain why in simple terms. Even in states without civil unions, the argument is often made that gay couples can achieve the same results with a few basic legal papers, like wills and powers of attorney.

    Once DOMA section 3 falls, that logic is out the window, and civil unions are demonstrably and dramatically inferior to marriage. Unless there is a federal civil union bill that confers all the benefits of marriage, marriage is the only way to confer the vast majority of marital rights.

    Public opinion is rapidly going to be forced into an all or nothing approach - marriage or nothing, since civil unions will be clearly seen as second class citizenship.

    It may even make Perry immaterial - since the state Supreme Court only let Prop 8 stand because no actual rights were involved and therefore with some legal origami, they were able to claim that denying marriage denied no rights and therefore didn't violate equal protection - once DOMA falls, that same ruling that allowed Prop 8 to stand would demand its removal, and on top of that, the impetus to repeal it would rise enormously, just as in any other civil unions state.

    Perry, especially interpreted narrowly, doesn't do anything like that.

    I think the real legacy of Perry will not be the eventual ruling, but the brilliance of the case and testimony itself, and the legal precedent it sets for arguing the same case in every other state. Whether it actually applies only to California or to the whole US, the court record will effect every other state, because it's pretty much unassailable and portable.

    Posted by: Lymis | Jun 5, 2012 4:19:45 PM

  20. At this point, it makes little difference. Gill was decided last week; rehearing was denied in Perry today. Since there is no point to BLAG seeking rehearing in Gill, that puts their schedules fairly close together. If the Supreme Court grants both, they will be heard and decided at around the same time; given the similarity of the issues, it's quite possible the opinions would even be released the same day. I expect, then, that the ruling in Perry will be made in the context of Gill, and the ruling in Gill will be made in the context of Perry; the order will not make a difference.

    Posted by: Fodolodo | Jun 5, 2012 4:21:07 PM

  21. Middleoftheroader: I think you are mistaken about a number of points. You are right that the question of animus is significant in these decisions, and that the Gill appellate decision in effect reversed Judge Tauro on the question of animus, while the question of animus is at the very heart of Judge Reinhardt's decision in Perry. But you are wrong to think that Justice Kennedy is somehow adverse to the notion of animus. After all, that is the very basis of Romer, which he wrote and which Judge Reinhardt echoes very closely.

    Posted by: Jay | Jun 5, 2012 4:22:21 PM


    RE: 1st Circuit found that there was NO 'animus'

    Not quite. The decision said that you couldn't use a handful of hateful statements to prove that anti-gay animus was the *sole* rationale.

    You are correct that this same analysis would allow Prop 8 to stand, but only if SCOTUS finds some non-hate-based rationale for Prop. 8, and tradition doesn't cut it, but they'll invent a way.

    Posted by: Bingo | Jun 5, 2012 4:25:24 PM

  23. Also MiddleoftheRoader: the Gill opponents cannot ask for an en banc rehearing. The Gill decision was a unanimous decision from a three-judge panel. There are only 6 judges in the first circuit. So there is no way an en banc hearing would be granted. Even if all three of the judges who were not on the panel voted in favor of an en banc hearing, a 3-3 vote would deny it. So they will not ask for an en banc hearing. They will file for cert with the Supreme Court, which will grant it.

    Posted by: Jay | Jun 5, 2012 4:26:15 PM

  24. And Jay, of the 6 1st Circuit seats, one is vacant.

    Posted by: Bingo | Jun 5, 2012 4:27:55 PM

  25. "So it is possible they might 'split the baby' -- accept review in both cases, but then affirm the decision in Gill (so DOMA is unconstitutional as applied to marriages performed in states where such marriages are recognized), and reverse the decision in Perry (so Prop 8 was 'rational' because it didn't affect substantive rights but instead affected 'terminology')"

    Except, if they 'split the baby', then suddenly the word 'marriage' in California does have substantive *federal* rights, which would be denied to Californian same-sex couples who are unable to marry or have a marriage recognized in California (even though they are able to get a domestic partnership that gives all *state* marital rights)

    Now, if SCOTUS says that any couple in a relationship that a state recognizes as "substantially equivalent to marriage" is entitled to martial federal benefits, then your position would work.

    Posted by: Matt N | Jun 5, 2012 4:28:07 PM

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