Ari Ezra Waldman | Gay Marriage | Law - Gay, LGBT | Proposition 8

The Supreme Court and Proposition 8: High Risk, High Reward?


This is the first in a series of analyses about the Supreme Court's decision to hear cases challenging the constitutionality of the Defense of Marriage Act and Proposition 8. Today's discussion: The Prop 8 grant.

In all quests for change, the central strategic questions are the same: How fast do we go and how far do we reach? It is no less true in our community, where advocates wrestle with the strategic risks and rewards of going for the gold today or setting incremental, but what they see as more attainable goals.

Olson-boiesThis debate played out in the months and weeks leading up to the decision to bring a federal challenge to California's Proposition 8. Some gay rights advocates worried that bringing a direct challenge to the marriage ban too soon -- before the country was ready, before any "emerging consensus" on the matter, and before any appreciably significant turnover in the Supreme Court -- could result in a negative decision that, like Bowers v. Hardwick's acceptance of anti-sodomy laws, set back our quest for equal dignity. Lawyers are trained to be cautious like that: don't bring a case you can't win, we're taught. But, with the Supreme Court deciding to hear Hollingsworth v. Perry, the supposedly too-fast, too-soon challenge to Prop 8 brought by the American Foundation for Equal Rights (AFER), many of those jitters are coming back to the fore.

My friend Emily Bazelon recently wrote in Slate that she's "more than a little anxious" about this Court hearing the Prop 8 case. NYU Law Professor Kenji Yoshino's interviews on TV express muted confidence and imply that "it'll all come down to Justice Kennedy." Professor Yoshino is a titan, but even he can't hide how risky that sounds. 

The Prop 8 case at the Supreme Court is indeed a high risk/high reward situation. But, it is a lower risk today than it was in 2008 for at least three reasons, one of which is a little legalistic and arcane.

1. Though the risk has a lot to do with the breadth of the question framed by the Court's grant, a broad question is not an automatic path to a broad decision.

2. The country has changed more in the last 4-8 years on gay rights than many of us imagined was possible. In particular, the political victories last month in which 3 states voted for the freedom to marry and 1 state beat back a ban have changed the narrative on the popular will. 

3. Those changes happened, in large part, because AFER brought its case and won two lower court decisions, while Lambda Legal, the ACLU, and the National Center for Lesbian Rights were winning DOMA cases.

AFTER THE JUMP, I tease out the first of these reasons (I've spoken about the political winds before), show that the Supreme Court did more than just grant a hearing in the Prop 8 case, and explain how the particular manner of its grant is going to shape our strategy going forward.


SupremesThe Grant

On Friday, the Supreme Court didn't just say, "hey, yeah, we'll take the case." It said that it will grant a hearing in Perry to answer two very specific questions:

1. Whether California can define marriage as a union between one-man and one-woman and be consistent with the Fourteenth Amendment to the U.S. Constitution.

2. Whether the Prop 8 proponents have Article III standing to bring the case?

Question 1 is what's giving people angst. Question 2 is what some are calling an "opt out" clause. I'd like to show how both assessments are off the mark.

The Angst

When the Ninth Circuit issued its narrow ruling in Perry, holding that the reason Prop 8 had to go was because it took away rights previously granted, many experts saw this as a way to let the Supreme Court take an incremental step toward marriage freedom without invalidating every single marriage ban out there. That decision was based on a particular, though by no means rock solid, interpretation of Romer v. Evans, which held that a provision of the Colorado Constitution that took away the rights of pro-gay advocates to seek protection for discrimination at any level of government save re-amending the state constitution was unconstitutional.

The Supreme Court's question is much broader than, say, "Whether California violated the 14th Amendment by taking away the right to marry from gay persons." And, by framing the legal arguments around the broader scope of the original district court decision, in which Judge Vaughn Walker declared the marriage ban to be a violation of the 14th Amendment regardless of the manner in which it happened, there certainly is the possibility that the Court could come back and hold that a one-man, one-woman definition does not violate the 14th Amendment. That decision would hurt us because it would not only affirm California's ban, but those in every other state.

The Angst is Understandable, but Unwarranted

For the same reason that I do not think the Court is ready to hand down a nationwide right to marry for all, I also think the Court is not willing to enshrine marriage discrimination in the Constitution if a state wants it. Here's why:

There is a great debate going on in this country about the freedom to marry and it's a debate whose tide has turned, with a consensus emerging that it is not only okay to let gays marry, but also a good thing. Even the conservative George Will thinks it's just about a done deal. But, as the debate rages, the Court is less likely going to be willing to step in and make a clear statement cutting that debate short. Even when it decided Loving v. Virginia in 1967, it only had to invalidate 16 state laws and the national consensus was against these laws for the most part. And, when it decided Griswold v. Connecticut in 1965, it only had to invalidate a few state anti-contraception laws and even those had stopped being enforced.

Plus, the Court has generally supported incremental change rather than wholesale legal revolution. That's probably a good thing: stability in the law breeds order, respect, and economic and social growth. And, this preference for slow and steady change does not mean the Court would reject DOMA but uphold Prop 8. That's too easy and fails to understand the legal arguments behind incremental change and the Prop 8 case, in particular. Incremental change is more likely to happen when the Court rejects DOMA and rejects Prop 8, while limiting the scope of its Prop 8 decision.

The central reason not to worry is this: A broad question does not necessarily require a broad answer. The Court is giving itself the space to decide what it needs to decide and it can choose a holding that fits anywhere within the spectrum between nothing and everything. It's like buying a gallon of ice cream: Just because you bought the whole thing doesn't mean you have to eat it all in one sitting.

Prop8There are, in fact, three ways the Court could reject Prop 8 without diving into the deep end.

1. Use procedure. The second question posed by the Court is the standing question. Do the Prop 8 Proponents, the citizens of California who authored and ran the political campaign to enact the marriage ban, have standing under Article III of the Constitution to step into the shoes of the State of California after California refused to defend Prop 8?

We talked about this quite a bit when the case was at the Ninth Circuit. If you recall, California did not want to defend Prop 8, so the proponents of the initiative took the State's place. Do initiative proponents have standing? It's a question about who has to show that they were harmed: do the proponents have to show that allowing gays to marry hurts them (they couldn't show that in a "particularize[d]" way, as is the requirement to bring a federal case), or do we just have to show that the state was adversely affected and that proponents could step into the state's shoes?

The California Supreme Court said that California state law allowed initiative proponents to take the place of the state and this allowed the Ninth Circuit to grant standing on the latter theory and distinguish some language from a Supreme Court case called Arizonans for Official English v. Arizona. In that case, the Court expressed "grave doubts" that random citizens who happen to be initiative proponents could have standing. But, in California, the law says they could; in Arizona, the law never granted that authority.

That holding was clever and sound, but by no means the final word on the matter. The Supreme Court could disagree with the Ninth Circuit's analysis of Arizonans and find that on any standing theory, the proponents lacked it. Though, because the Court would have to accept the California Supreme Court's word as a binding interpretation of state law -- state courts are experts on state law, federal courts are expects on federal law -- a rejection on standing would be based on the Arizonans "grave doubt."

If this happens, the district court decision would be reinstated, Judge Walker's order goes into effect, and gays could marry in California.

2. Use the Ninth Circuit's substance. If the procedural path is like buying a gallon of ice cream and then realizing you have no clean spoons to eat it with, the substantive path is like buying the gallon, taking two scoops, and saving the rest for later.

The Supreme Court could answer its broad question in the same way the Ninth Circuit did: "No, California cannot define marriage as a union of one-man, one-woman only because California cannot be in the business of taking away rights merely to burden a particular disadvantaged subgroup of people." That would be specific to California.

The problem with just affirming the Ninth Circuit's decision is that it really isn't the most sound legal decision. It relied on Romer, which took away decidedly more rights -- the power to use the levers of political power at all levels of state government to fight for protection against discrimination. It was the sheer breadth of what Colorado took away that generated the inference of animus toward gays, not simply the taking away of something. All Prop 8 took away was the word "marriage." This fact required the Ninth Circuit to spend quite a bit of column inches on why the word "marriage" is so important. And, that word is "important." But, Prop 8 left everything else in place. All the rights and privileges the state gives to heterosexual married couples would still be given to gay domestic partners. That wrinkle makes the argument iffy.

Still, the idea isn't off the mark. There are plenty of other decisions in the "taking away of rights" area that could lend credibility to the theory. So, all the Supreme Court would have to do is take its two scoops and add the ooey-gooey toppings the Ninth Circuit left off. Like the procedural path above, this would allow marriages to start in California -- and in California alone -- almost immediately.

3. Take a different limited path. Professor Yoshino deserves credit for reminding me about another option. If improving upon the Ninth Circuit's decision is like having two scoops of the gallon of ice cream you bought, this would be like buying the gallon of vanilla and having two scoops of the pint of chocolate you bought, as well.

What is unique about California is that Prop 8 created an "everything but marriage" situation. There are a few other states like that: 

Delaware, Hawaii, Illinois, Nevada, New Jersey, Oregon, and Rhode Island. Oddly, as I have argued before, the "everything but" marriage status makes the least sense of any marriage ban; it would be more rational if a state discriminated against gays in every way possible than treated them equally in 99 out of 100 respects. Think about it: how could you legitimately argue that you think gays marrying will have this or that negative effect on children or education or divorce rates if you already let gays adopt, raise children, and divorce. You stand to make more sense if you were actually consistent in your hatred of gays. Disgusting, no doubt, but at least consistent. 

To be fair, I don't think this is a likely result. Neither does Professor Yoshino. But, it could give you a window into the myriad options the Supreme Court has. Just because it took the Prop 8 case and took it broadly does not mean that we are poised for a Bowers v. Hardwick type loss. The political winds and the law are on our side. 


Let me be clear: I am not predicting that the Court will choose one of these options over the other two. I don't have a crystal ball and I don't gamble. I tried to show that the Court has options between a nationwide right to marry and a nationwide block on gays marrying. The lesson here: Keep calm, and carry on.


Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

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  1. The Supreme Court is notoriously unpredictable. Is there any legal pundit/scholar/prognosticator who has a better than 50% record on their predictions?

    Failing that, is there any evidence that public debate about a case can influence the outcome?

    Failing that, can we all agree to spend our energies on more productive things until the Court issues its decision?

    "Keep calm and carry on," indeed!

    Posted by: BABH | Dec 10, 2012 12:33:17 PM

  2. NCLR has not been litigating DOMA challenges. Gay & Lesbian Advocates & Defenders has (Gill and Pedersen).

    Posted by: a. | Dec 10, 2012 12:38:34 PM

  3. My prediction is the court will issue two decisions on the last day of the session. First a narrow ruling on the Prop. 8 case that restores the right to marry in California only, but does not expand marriage equality nationwide. In the Windsor case they will rule the federal government must grant all federal rights to married couples in those states where same-sex marriage is legal.

    This split decision will delay by 3-5 years a final "Loving v. Virginia" kind of case that will finally extend full marriage rights to all states, while giving more of the country time to become more comfortable and supportive of marriage equality.

    Posted by: Smartypants | Dec 10, 2012 12:42:42 PM

  4. My prediction is the court will issue two decisions on the last day of the session. First a narrow ruling on the Prop. 8 case that restores the right to marry in California only, but does not expand marriage equality nationwide. In the Windsor case they will rule the federal government must grant all federal rights to married couples in those states where same-sex marriage is legal.

    This split decision will delay by 3-5 years a final "Loving v. Virginia" kind of case that will finally extend full marriage rights to all states, while giving more of the country time to become more comfortable and supportive of marriage equality.

    Posted by: Smartypants | Dec 10, 2012 12:42:43 PM

  5. Re: #1 "If [the Supreme Court rules that the Prop. 8 supporters lack article III standing], the district could decision would be reinstated, Judge Walker's order goes into effect, and gays could marry in California."

    There's considerable dispute as to your conclusion, with many legal scholars noting that because the district court decision would lack precedential effect, it would provide relief only to the plaintiffs in that case. Hence, only the plaintiffs in that case would automatically be allowed to marry. See Volokh and SCOTUSblog for more.

    Posted by: alb | Dec 10, 2012 12:42:57 PM

  6. I think it worth noting that the EP question in Hollingsworth v Perry was NOT drafted by the Court, it was drafted by the Prop 8 proponents. The Court simply chose not to rewrite it. Parties routinely frame their petition questions in ways they deem favorable, and the Court does not often rewrite them. The question as written could encompass a broad or a narrow outcome, so I would not read anything into the precise wording of the question.

    Posted by: Glenn | Dec 10, 2012 12:45:15 PM

  7. Even if they rule against us, it doesn't matter. Ir just means we'll have to continue to do what we've been doing. Is that a lovely thing? No, not really. But we will win, either through more state laws being changed, or through congress repealing DOMA.

    Posted by: Ben in Oakland | Dec 10, 2012 12:46:46 PM

  8. The question remaining unanswered is this: Can the SCOTUS take away the marriage rights already won in other states?

    Or is our worst-case scenario that the Court will allow bans to remain in place in states that have them?

    Posted by: TC | Dec 10, 2012 12:48:50 PM

  9. Even if the case is lost, California can have another referendum in 2016 when Hillary Clinton will kick the ass of the GOP again. That means we have to wait 4 more years.

    Posted by: simon | Dec 10, 2012 12:50:48 PM

  10. I think the SCOTUS will most likely affirm the 9th circuit ruling and let it stand, narrowly. I don't think the use of Romer in the 9th circuit's decision is an inappropriate or bad application of previous case law- in fact, the situations in both circumstances, although somewhat different in scope, are incredibly similar. It was a natural case to apply to one in which there were rights conferred, then removed by popular vote via a constitutional amendment, with essentially no rational reason to remove those previously conferred rights. I actually think the 9th circuit got it right.

    Posted by: Cecilfirefox | Dec 10, 2012 12:51:19 PM

  11. @TC

    No, the SCOTUS can't take away marriage rights for gays in the states that passed it.

    Posted by: jawole | Dec 10, 2012 12:57:16 PM

  12. "one-man, one-man"?? Do you mean "one-man, one-woman"?

    I really can't stand this guy. Towleroad needs a new legal expert.

    Posted by: Matt K. | Dec 10, 2012 1:06:20 PM

  13. Very helpful, but I am left wondering what happens to the cases the SCOTUS did not take.

    Posted by: Roger Youngs | Dec 10, 2012 1:19:50 PM

  14. Roger, the cases that SCOTUS hasn't taken will likely be held for disposition once the Windsor and Prop 8 cases are decided. Depending on what those cases decide, the Court could simply deny cert or could vacate the lower court decision and order it to reconsider in light of whatever they say in the two cases.

    Posted by: Glenn | Dec 10, 2012 1:30:05 PM

  15. I think Smartypants is right. Honestly, that is probably the best case senario. The "Damn the torpedoes, full speed ahead" mentality that has taken over the LGBT orgs does not change the fact that there is still a lot of opposition to SSM in this country. 53% of Americans might be for it but that is not evenly distributed throughout the states. You can bet your bottom dollar Texas, Mississippi or Kansas will be up in arms if SSM is granted to all 50 states. I can see Obama having to call the National Guard to allow Same sex couples to marry or Rick Perry and Scott Walker blocking the court house door. Safe in their DC/NYC/LA bubble, I fear many of the LGBT orgs are ignoring these outcomes or have simply let blind optimism take over. Hope for the best, but prepare for the worst.

    Posted by: KT | Dec 10, 2012 1:31:59 PM

  16. Oh ye of little faith...

    I've stated a few times that I believe that DOMA and Prop 8 will be ruled unconstitutional... Finally, I have found someone in the legal community who agrees with me:

    Everyone is saying how the supreme court is afraid to repeat Rowe vs. Wade and upset the country, or that they won't invalidate the constitutions of 40 states because, well even though they are wrong, that is 40 states... well, did you know that 41.5% of the population lives in a state which has either marriage, domestic partnership or civil unions? That is quite a large amount of the population... sounds better than 40 states forbid gay marriage doesn't it.

    Nobody knows what the court will really do... but seriously @Ari... what is with all these people who think that the court won't do the right thing... who seriously thinks the court will write another Plessy v. Ferguson? Why would the court punt when public opinion is swinging rapidly for marriage equality. If they wanted to punt it would have be more logical for them to deny hearing the case and let the 9th Circuit very narrow opinion rule for a few more years.

    I truly believe that the court wants to make the civil rights decision of our time. Justice Kennedy wants to complete his trilogy of gay rights cases - and he isn't going to do it with some milquetoast opinion that will be either over ruled in a few years or rendered inconsequential by the march of time. The court is going to seize the moment and do the right thing.

    We're talking basic human rights here and everyone knows it is the proper thing to do. This is what the supreme court is meant to do - to protect minority rights. I don't believe for one instant they are going to shirk their responsibility - especially when the majority of the country and the current and a former POTUS support it.

    In June, everyone remember my prediction... and those that think SCOTUS doesn't have the will to do the right thing... well, guess what... you are wrong...

    Posted by: MikeH | Dec 10, 2012 1:56:59 PM

  17. I think Ari is primarily concerned with how all of this might affect his bff, Dharun Ravi.

    Posted by: Sara | Dec 10, 2012 2:15:29 PM

  18. Just to pick nits:

    "Even when it decided Loving v. Virginia in 1967, it only had to invalidate 16 state laws and the national consensus was against these laws for the most part."

    No, it wasn't. More than 70% of the country was in *favor* of anti-miscegenation laws. That's more than are against same-sex marriage today. And yet, there was a unanimous decision by the Supreme Court that marriage was a fundamental right.

    Now, I have no illusions that the SCOTUS will actually follow through on that. After all, despite the fact that Scalia has already directly stated the Lawrence v. Texas necessarily requires same-sex marriage to be constitutionally required, he will find some way to weasel out of it.

    But, the popular consensus is more on our side than it was for mixed-race marriage when the SCOTUS "forced" it on the entire nation.

    Posted by: Rrhain | Dec 10, 2012 2:18:13 PM

  19. What would happen if one of them were to croak between now and then (decision time)?

    Posted by: Oliver | Dec 10, 2012 2:32:25 PM

  20. @KT: I think it's unfair to tag LGBT legal orgs with a "Damn the Torpedoes" attitude. They have been extremely careful about where to bring suit -- i.e., in those states where a careful analysis revealed a substantial likelihood of victory -- and I'd say they have been extraordinarily successful. The LGBT orgs also have been very careful not to raise a broader federal constitutional claim so as to bring it to the Supreme Court prematurely. But it was AFER, i.e., Ted Olson and David Boies, who decided to press the Prop 8 case on federal grounds, over the objection of most LGBT legal orgs, who felt it was too risky. I certainly hope that Olson and Boies are proven correct here -- we have no choice but to hope so -- but if it goes bad it is not because Lambda, etc. pressed too hard.

    Posted by: Glenn | Dec 10, 2012 2:34:18 PM

  21. Oliver,

    it would largely depend on which one and whether or not the appointment process moved quickly enough to allow a new justice to be seated in time to hear the case. If one of the liberal justices, or Justice Kennedy, died odds are it would have little or middling impact because the President would appoint a liberal in their place. If one of the conservative justices died it would almost guarantee a victory for gay rights in these cases but more importantly would signal a change in the balance of power on the court.

    Posted by: Kas | Dec 10, 2012 2:58:16 PM

  22. I, too, agree the Supreme Court will do the right thing. I don't believe the Court, as a whole, will work itself into knots in trying to avoid the law and justice in favor of not upsetting the apple cart of backwater states. I don't believe the Court, as a whole, is not prepared to tackle the big issues of this country and indeed feel it is eager to make its mark on the history of this nation.

    What possible strategy or rationale is there for taking up the Prop 8 case in particular if only to punt on the standing issue or even to leave in place the narrow California-only ruling of the Ninth Circuit when that same outcome could have been achieved by NOT taking the case? How could there be enough cynical votes to take this case by ultra-conservative Justices who know full well they have no power to invalidate the 9 states that have equal marriage nor to halt the momentum that will bring more of them into the fold? Nor can such justices in their wildest machinations see any rationale to affirm DOMA that would prevent such marriages from attaining full federal recognition. In fact, even California - should SCOTUS go against it - could restore equal marriage by a later vote of the people. There's quite simply no positive outcome possible for the conservative justices ... and so I interpret the vote to take the case as one affirming the Court's desire to rule on the merits, wherever those merits may lead.

    Posted by: Zlick | Dec 10, 2012 3:00:09 PM

  23. And to follow-up RRHAIN's comments on Loving v. Virginia not only is he correct that a majority of Americans opposed interracial marriage at the time of the decision, in fact it wasn't until the 1990s that even a plurality of Americans no longer were willing to tell pollsters that such marriages were wrong, and 1994 before a majority supported interracial marriages. Yes, only a few states had such laws still, but the public overwhelmingly was opposed to such marriages and remained so for nearly three decades after the Supreme Court ruled.

    Posted by: Thom Watson | Dec 10, 2012 3:00:25 PM

  24. Ted Olson, make me proud.

    Posted by: Anthony | Dec 10, 2012 3:08:42 PM

  25. A lot of people are obsessed with this narrow ruling on the Prop 8 case. If I didn't know better, from all this, I'd say the narrow ruling was in the bag. One problem: when has SCOTUS ever issued such a narrow ruling? When have SCOTUS decisions affected only one state, but no other? I've never heard of it, so I consider this notion of a narrow ruling little more than fanciful daydreaming. SCOTUS is the all-mighty court in the US, ruling over everything. If it had wanted the narrow ruling, it wouldn't have taken the case at all. So it seems to me that this is a win all or lose all type thing. Maybe the 2nd question will be the "opt-out clause", that is a very real possibility. But a narrow ruling is, in my opinion, simply not going to happen.

    Posted by: Matt | Dec 10, 2012 3:12:05 PM

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