BY ARI EZRA WALDMAN

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.

At 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?

CONTINUED, AFTER THE JUMP...

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?

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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.