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

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.


  1. BABH says

    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!

  2. a. says

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

  3. Smartypants says

    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.

  4. Smartypants says

    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.

  5. alb says

    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.

  6. Glenn says

    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.

  7. Ben in Oakland says

    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.

  8. TC says

    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?

  9. simon says

    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.

  10. Cecilfirefox says

    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.

  11. Matt K. says

    “one-man, one-man”?? Do you mean “one-man, one-woman”?

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

  12. Glenn says

    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.

  13. KT says

    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.

  14. MikeH says

    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…

  15. Rrhain says

    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.

  16. Glenn says

    @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.

  17. Kas says


    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.

  18. Zlick says

    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.

  19. says

    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.

  20. Matt says

    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.

  21. ratbastard says

    It was inevitable this issue would land at the SCOTUS feet and they would take it up. No sense in delaying the inevitable. Might as well get it over with.

  22. Keith says

    Ari, you forget a 4th possible outcome. When the CA Supreme Court made its ruling that Prop H8 was not unconstitutional upon appeal, it was because at the time DOMA existed and there was clear denial of any rights or benefits by just being limited to domestic partnerships in the state. There was mention in the ruling that should DOMA or Federal Benefits be denied, then there was a constitutional issue because those same-sex couples who married when it was legal would be gaining rights and benefits that those under domestic partnerships at the time were not.

    Would it not be possible to undo DOMA Article III first, and then the US Supreme Court could conclude that such marriage bans did in fact deny same-sex couples rights and responsibilities that were afforded to every other citizen who is legally married? Under a certain logic, how on a national scale can some same-sex couples have all the state and national rights and benefits, while others are denied the same things just because of where they happen to live? If, due to work, we had to fly to a state that didn’t have equality, and something happened there, how would the law explain that just because you weren’t on a certain piece of ground you suddenly have no legal rights as you did before the plane took off?

    Using your analogy, having both vanilla and chocolate ice cream, it would be as if you had the ice cream and spoons in one state, but suddenly no spoons in the other even though the ice cream still was in front of you.

    I’m not a legal expert, and I realize that even within the states there are unique rules regarding marriage, but the reality is when a couple is married, they are married everywhere in the US, not just in one state and only if they happened to be married in a 5-month window such as what happened here in California. Can we be legally boxed in to only being able to travel or live in certain states? Wouldn’t that ultimately deny us freedom of choice in earning a living or advancing in a career?

  23. Bingo says

    Glad to see someone has this critical view of the Ninth Circuit decision.

    I think Yoshino’s idea is just a bit premature. It’s at the heart of the Nevada case that the court will get to soon enough.

    Re the narrow ruling on Prop 8. The standing question is a big one. It’s the meat of SCOTUS jurisprudence and not just an “excuse” to avoid taking an issue head on….though it’s that too. Hard to see how the court doesn’t reaffirm Arizonans for Official English v. Arizona (1996): “this Court has never identified initiative proponents as Article-III-qualified defenders.” Ginsburg for a unanimous court.

  24. MikeH says

    @Keith… an excellent point – and I think you are referencing the Full Faith and Credit clause of the constitution. As I stated earlier, I just don’t see anyway that marriage equality isn’t coming to all 50 states. The court isn’t going to contort itself to come up with some half-ass decision just to have it over-ruled later, whether it be 5, 10 or 15 years. If they wanted to punt, they wouldn’t have taken the case. They aren’t going to rule against marriage equality because the writing is on the wall… even George Will yesterday acknowledged that the anti-equality folks are dying off… literally. To me, it is crystal clear… June is going to be for weddings! πŸ˜‰

  25. MiddleoftheRoader says

    Anyone who ‘predicts’ what the Supreme Court will do in the Prop 8 case (or DOMA case)is just guessing. Yes, it will come down to Justice Kennedy (but maybe Chief Justice Roberts), but it’s literally impossible to do anything more than have an ‘educated guess’ on how they will vote.

    Apart from dismissing the Prop 8 case for lack of standing, most everything about the Supreme Court’s history would suggest a narrow ruling one way or another, for or against Prop 8. For the Court to reach out with a broad ruling that either compels same-sex marriage on a national scale, or that permits any state to reject any marriage (or “marriage-like”) rights for gay people simply isn’t going to happen. I can’t predict if the Court will rule favorably or unfavorably on Prop 8, but it simply isn’t going to be a broad ruling unless the Court ignores its own history of dealing with these types of issues (and it won’t).

    So, if the ruling is narrow but favorable, what will it be? Probably a bit like Ari suggests, but with a slight twist. Specifically, the key is that California gave same-sex couples in domestic partnerships the exact same rights AND obligations as opposite-sex married couples (this is different from some other states where domestic partners have most, but NOT all, of the same rights as opposite-sex married couples — but states like DE and IL did, I believe, give same-sex couples ALL the same rights & obligations as marriage). However, California then said you can have all the rights and OBLIGATIONS,but you can’t use the word ‘marriage’ which is restricted to opposite-sex couples. That’s a variant of “separate but equal”, namely both schools are terrific with teacher, courses, physical facilities, etc., but one is “white” and one is “colored” (to use the offensive words actually used), and that makes them inherently unequal because of the “damage” done by the “stigma” of a separate facility. So, yes, the Supreme Court could say that once California went as far as it did, it couldn’t deny use of the word “marriage”. But that’s not all we have going for us, because in California that denial of the word “marriage” is even worse because same-sex couples previously had the word “marriage” associated with their relationship, but the voters took away that word. The reason why Kennedy or Roberts might like this approach (used by the Ninth Circuit) is that it is SO NARROW, that it literally doesn’t apply to any other state. Some states have domestic partnerships which give partners the exact rights as opposite-sex married spouses, BUT these states (unlike California) didn’t previously give same-sex partners the right to use the word “marriage” and then take that right away from them based on animus or irrationality or meanness. So, if Kennedy and Roberts wanted to uphold the Ninth Circuit decision, and not have it apply anywhere else, they could do so by this approach. It wouldn’t affect DE, IL or any other state which now has only domestic partnerships.

    On the other hand, if Kennedy AND Roberts (the 3 neanderthals need BOTH of their votes) want to uphold Prop 8, then they will probably do it in the most narrow way possible — by saying that same-sex domestic partners have all of the same rights as opposite-sex married partners in CA, and so it is really “form over substance” to say that they also need to have the word “marriage”. This analysis ignores mounds of evidence before the trial court about the importance of the word “marriage”, but Kennedy and Roberts could do that if they wanted to uphold Prop 8 and do it in the most narrow way. AND THEY COULD SAY THAT THE DECISION DOES NOT TAKE A POSITION, one way or another, on whether a state has the right to deny the same rights (other than use of the word “marriage”) to same-sex partners as married spouses have. In other words, they could say that MAYBE OR MAYBE NOT it’s unconstitutional for a state to prohibit “marriage” AND “anything similar to marriage” AND “marriage-type rights”, etc. to same-sex couples. They could say that is a question for another day.

    I certainly hope the Supreme Court takes a very broad, pro-gay approach on Prop 8, but I just don’t see it happening — and I’ll be delighted to be wrong. If they throw out Prop 8 based on the narrow analysis above, the practical effect (the largest state with same-sex MARRIAGE) will be huge. And if they uphold Prop 8 on the narrow analyses above, hopefully that won’t haunt us for another 25 years and it won’t allow states like OH, MI, VA, etc to refuse any marriage-type rights to same-sex partners. If and when the Supreme Court ever considered a case from Virginia or Ohio or Michigan which says gay couples can’t have any “marriage-type” rights, I think Kennedy or Roberts (or both) would find THAT to be unconstitutional.

  26. Craig says

    Question is – why was Prop 8 taken up?

    Most likely all hinges on Kennedy (there is a significant chance that Roberts would join with him to make a 6-3 ruling. He cares about the standing of the Court and what will happen in the future – whichever way it goes I think he’ll be in the majority).

    The point most people ignore is what if DOMA is overruled? It’s worth dwelling upon that point. At the moment marriage, unions, DPs are pretty much rhetorical points of argument (albeit with great degree of meaning and import). Once DOMA is revoked that picture changes drastically resulting in a number of consequences. The consequences of discrimination are very much accentuated; the option of ‘everything but marriage’ disappears because – after the removal of DOMA – unions and DPs become by definition very much inferior and therefore markedly discriminatory in a way they aren’t now.

    For one thing the removal of DOMA would very much change the legal situation with respect to State constitutions (e.g. NJ but others too) which would virtually guarantee a fresh spate of new litigation in several states (under State constitutions where same sex marriage isn’t outlawed).

    A handful of state legislatures and the recent voter victories are great to see – another decade of prolonged litigation much less so.

    I think about as much legal juice has been squeezed out of this particular orange as can be got out of it. SCOTUS wants to allow the debate to run but there comes a point where it exacts too high a price when there is a reasonable constitutional remedy that can be provided. We are surely close to that point now.

    Give some thought to a post DOMA world. At the moment gays get more or less the same treatment all over the US. Without DOMA the inequalities would be profound leading to people and firms relocating across States.

    So to the question as to why SCOTUS took up Prop 8 there is a very real chance they took it up because they needed to to deal with the consequences of striking down DOMA. They may already have decided that a minimalistic approach won’t work here. If they wanted a middle path they could have denied cert to the Prop 8 case.

    A final point is this. US wide recognition of the right to marry would still leave to the States to arrange the marriage laws as they wish to (e.g. a right to enter marriage, differing arrangements for soemnization, for faith bodies, for persons to decline to marry if they don’t agree and so on – there would still be a right to enter into a marriage and have it recognised at law). Consequence is there is little danger of active insurrection as there was with desegregation. It would pass by relatively peacefully.

    The danger of dreaming too high is a few days of bitter disappointment. The danger of dreaming too low is we fail to effectively set out our belief in our constitutional right to marry as a core constitutional right; proclaiming the court will definitely be minimalist helps to box them into that option – or worse.

  27. Arturo says

    Thanks for an interesting analysis. I would like to offer another more far-fetched, but still possible SCOTUS outcome.

    I was thinking that another possible “incremental step” might be for Justice Kennedy to write a Majority Decision using a variation of his Romer v. Evans reasoning that affirms the Ninth Circuit’s Prop 8 decision while simultaneously striking down the 19 State Constitutional Bans that denied LGBT couples significant legal recognition of any kind. This would leave intact the remaining state bans that simply defined marriage as a union between one man and one woman. Under this scenario the majority would find unconstitutional those bans that blatantly punished same-sex couples by denying them any bundle of rights that approximates marriage.

    Such a decision would not automatically create a constitutional right for same-sex couples to get married in those jurisdictions. Instead, it would throw it back to the democratic process in the affected states to allow same-sex marriage or pass bans if state law didn’t already prohibit it.

    Now, under 14th Amendment “Equal Protection” jurisprudence and 1st Amendment “Religous Freedom” tenets, I personally believe that marriage equality should be established as a constitutional right for same-sex couples, but I too am worried that might be prove too far a stretch for the Roberts Court at this juncture. A decision that reaffirms the critical importance of the democratic process in the evolving national consensus while protecting a disadvantaged minority from being singled out and punished by the majority might be a more palatable step forward for Kennedy that could even attract Robert’s support.

    I think the preceding is far less likely than the other scenarios discussed in the article and in the comments, but it seems at least possible, given what we know about Kennedy’s jurisprudence.

  28. MiddleoftheRoader says

    Mike H and others: Full faith and credit applies ONLY to court decisions. In other word, a decision by a state court is one state is entitled to full faith and credit in the courts of another state. But even this has some exceptions.

    An “extra-judicial act” (something not done by a judge or court) is not entitled to any full faith and credit. Therefore, that clause will not require any state to recognize a same-sex marriage from another state.

    However, what’s going to require such recognition by other states is the Due Process Clause,Equal Protection Clause, or (yes!) the Privileges & Immunities Clause. Specifically, if both same-sex female parents are parents of a child in NY or DC or WA (and BOTH are parents NOT due to a court order of adoption, but due to the fact the child was born to one woman while she was married to the other woman) — does anyone really think that if these women move to Alabama or Ohio or Michigan that, poof, suddenly the child has only one parent? That the 2nd parent can’t pick up the kid at school or sign a medical consent form? There is no way that the Supreme Court is going to allow Alabama or Ohio or Michigan to say that the kid now has only one parent, or that one parent has lost her parental rights by moving across state borders. Ain’t going to happen. That would be a denial of Due Process, Equal Protection and (yes) the constitutionally-recognized right to travel (Shapiro v Thompson, 1969, Privileges and Immunities Clause).

    There are lots of other examples, but the ones with kids are the most obvious and compelling. States that refuse to recognize same-sex marriages and “marriage-type rights” (like the right to be a parent of your child!) are going to have a rude awakening at the Supreme Court in the coming years.

  29. BABH says

    “What possible strategy or rationale is there for taking up the Prop 8 case in particular if only to punt on the standing issue”

    Umm, perhaps because procedural law is really, really important?

  30. Arturo says

    I would like to clarify that if SCOTUS did invalidate the 19 State Constitutional Bans on significant marriage-like recognition of same-sex couples that any subsequent limitations of their rights would have to be consistent with the Court’s reasoning. Like I said, quite an unlikely scenario, but I could imagine a decision that conformed with it.

  31. MikeH says

    @Middleoftheroader… I reviewed FF&C and I agree that I was mistaken in that it has applied in the past to marriage cases. It wasn’t mentioned in the 1967 Loving case… It hasn’t yet been applied in that manner – but is a legally binding contract between individuals and the state. In any event, I believe you’ll be delighted in June… πŸ˜‰

  32. abel says

    Thanks, Mr. Waldman, for an (as usual) excellent analysis of this complex situation. Barring the sudden removal of Scalia, I have little hope for a favorable outcome, but you actually have eased a bit of my worry. I appreciate your insight.

  33. Rich says

    The best way to deal with the Red States is to throw out DOMA and apply the full faith and credit clause to Federal recognition. I can live with not getting a marriage license in Phoenix; if need be, we’ll live with Bruce having to file as an individual in Arizona so long as he’s living there, but the big questions will have been resolved for us with a California or New York marriage.

  34. Stefan says

    “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.”


    Boise and Olsen circumvented that issue by naming the state of California as a plaintiff in the case, so yes, such a ruling would still bring back marriage equality to the entire state of California.

  35. says

    I don’t see the supreme court ruling against marriage equality unless proponents push hard that marriage needs to promote procreation. But that will be a hard sell hopefully given the fact that most (if not all justices) should know a ruling for that can be turned on its head and invalidate millions of marriages for people who are infertile or people who have taken permanent measures to make sure they won’t have children (i.g. snipped or tubes tied). I can’t see being constitutional enough to grant some people rights while keeping the same rights out of the hands of other.

  36. Randy says

    “stability in the law breeds order, respect”

    I don’t think so. Incremental change, for one thing, is not stability. Rather, it’s a lot of changes. A single large change would be more stable than lots of little changes, each constantly rippling throughout the system.

    Additionally, incremental change reveals the court to be political, not based on fact. It loses respect with each increment.

    Or are you now going to tell me that Baker and Bowers were correct decisions?

  37. rroberts says

    Please forgive that I’m not as legally enlightened as others here, but even the experts seem to be trying to read leaves, so maybe someone can clear up something for me …. Would the order in which the court hear these cases make a difference in how the cases are decided?

    I get the impression from the analyses I’ve read that Prop 8 would be the first case taken, but what if it’s not?

    Is it possible that the Prop 8 case is actually more about determining standing, not only for this case but for future cases (marriage or otherwise)? If the court hears the DOMA case first, and decides to effectively kill DOMA, wouldn’t that have an automatic effect on Prop 8?

  38. DB says

    One error in this post – in 1967 when Loving v. Virginia redefined marriage to include opposite-race couples, it is not true that most of the population supported inter-racial marriage. On the contrary, somewhere between 70% and 95% of white Americans did not support the right of inter-racial couples to marry.

  39. zeke says

    If worse comes to worst, it is almost certain California will repeal Prop 8, and Oregon, Illinois, and perhaps even New Jersey will legalize gay marriage fairly quickly. At this point well over half the population of the country will live in states with marriage equality.

    Sooner or later, the Supreme Court will have to resolve the multitude of problems that will arise from this situation. With Obama safely in place for the next four years, and Hillary Clinton waiting in the wings to take his place, the emergence of a Supreme Court favorable to our cause is almost inevitable.

    Surely Roberts can see the handwriting on the wall. If he chooses to rule against us, he will almost certainly live to see his opinion reversed by his own court, and relegated to the trash can of history.

    On the other hand, Kennedy, as senior Justice, is being handed the opportunity to author an historic majority opinion on one of the great civil rights issues of our lifetime. Pretty heady stuff.

  40. Lymis says

    “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.”

    Actually, you can make a pretty damn good case that Romer v. Evans was exactly that sort of case – it dealt with sweeping anti-gay legislation by saying only that Colorado couldn’t take away gay rights that way.

    It didn’t weigh in, (though it easily could have) on whether sexual orientation required heightened or strict scrutiny, or whether anti-gay laws in general were a violation of the Constitution.

    Just that law, that way, with that effect. It set the precedent that nobody else could use the same law for the same purpose in the future, but that’s about all.

    A narrow Prop 8 ruling would do the same thing – as people are saying about the idea of granting marriage to all but stripping it from others.

  41. Lymis says

    @ Arturo
    ” For one thing the removal of DOMA would very much change the legal situation with respect to State constitutions (e.g. NJ but others too) which would virtually guarantee a fresh spate of new litigation in several states (under State constitutions where same sex marriage isn’t outlawed).”

    I think it could actually reopen litigation even in states that have a constitution that bans same-sex marriage.

    Any previous lawsuits, with DOMA in place, would have only litigated whether or not the state had the right to outlaw marriage for the purpose of state benefits. The question of whether the state, as a state, has the right to limit which citizens get purely state-specific rights, is one thing.

    But with DOMA gone, an entirely different, and even more important factor comes into play – does the state, acting as a state, get to deny its citizens access to federal benefits available to similarly situated citizens in other states, regardless of how they grant their own state-specific rights?

    Making a couple buy two separate hunting licenses or ineligible to apply for state aid as a couple would be one thing. Denying their citizens access to things like Social Security benefits, spousal immigration processes, immunity from testifying against your spouse, federal tax structures, and other federal benefits is an entirely separate question.

    Is the state function as gatekeeper to access to federal benefits distinct from it’s function as the manager of state benefits?

    DOMA falling wouldn’t automatically overturn state constitutions, but it might well open a lot of new doors to litigation.

  42. Arturo says


    It actually occurred to me that the possibility that overturning DOMA could lead to a spate of federal law suits challenging state constitutional bans on 14th Amendment grounds may be the primary reason the Court took the Prop 8 case. If, after oral arguments, Kennedy and/or Roberts come to the conclusion that it’s too soon to rule on the constitutional merits of marriage equality, they would surely want to clarify the standing issue in a world without DOMA.

    After all, if challenges to these bans ensue in states like Oregon or Montana with Democratic Governors and Attorneys General, than the issue of who has standing to defend them could be quite significant, if those state elected officials choose to follow California’s example and not defend the ban in Federal Court.

    I am not saying that such a decision on their part is that likely, but such a scenario could have been enough to prompt the Supreme Court to take the Prop 8 case and clarify this issue in the context of invalidating Section 3 of DOMA.