1. norseman says

    Interesting perspective from Mr. Boies. That would make the SCOTUS prop 8 ruling much more powerful than one would have thought. We’ll be able to watch the Anti Marriage Equality States fall one by one if this interpretation holds. Nice.

  2. Anthony says

    He’s right. The bans won’t last over the long run. Exact same thing happened in Canada. Thank you Justice Kennedy!

  3. nick says

    Let us hope Mr. Boies is correct. Some dominoes will fall faster than others-but we have hope and kudos to Justice Kennedy.

  4. says

    Wow. Those quotes, if accurate, don’t display a very good grasp of what the various courts held in these cases. I agree with Boise that state-level bans are unconstitutional, for reasons a little different from those suggested above. I can’t imagine any court would adopt the understanding of the cases suggested in the above quote.

  5. JONES says

    Love David Boies.

    His rationale on Prop 8 jives with Kennedy’s strong language in DOMA.

    States don’t define marriage. They only regulate it and that regulation must be subject to constitutional guarantees for all citizens.

  6. says

    This is a great insight into the judgment…..I would like to hear Ari expand on this…..I don’t think he has posted on this interpretation yet.

    I need this to be explained to slow learners.

  7. UFFDA says

    This news rocks. Without really caring much about gay people SCOTUS has supported us quite handily. I don’t like it much either but who cares, they’re just doing their job.

  8. Jeff says

    Prop 8 proponents never mention one simple fact and that is that same-sex marriage was legal in California before Prop 8 passed.

    Had this not been the case, and Prop 8 came about first, before gays could be married in CA, I think it would have been much harder to overturn. It still was a law that “discriminates against its own citizens” but it also took away a right that was previously (legally) granted.

    This may have been way we were able to get such powerful attorneys on our side, they saw two strong points against Prop 8 legally, and not just simply because it is the right, and fair thing to do.

  9. lukefromcanada says

    even if his interpretation is wrong, it is going to become very difficult for states to defend these bans when they come up for review in court as they were clearly based on fear and animus

  10. jsb says

    We can only hope Boies is correct, this discrimination needs to end nationwide, the sooner the better. We know the bigots, religious or not, will fight us to the very end or further.

  11. JONES says

    This also speaks volumes about the importance of clarity and scope in Judge Vaughn Walker’s ruling.

    Can’t thank him enough.

  12. Lymis says

    Not a lawyer.

    But I think he may be right in the legal sense but glossing over an important technical point.

    Yes, the Walker ruling is a federal ruling declaring in part that all marriage equality bans for same-sex couples are unconstitutional. And yes, that will certainly factor in other cases.

    However, at the same time, that ruling is not a precedent anywhere outside of the scope of the jurisdiction of Walker’s court – which means that while it covers the whole US, judges elsewhere in the US are not required to agree. It’s not binding.

    If a court in Oregon says something else, then if the two cases go on appeal to be resolved, at that point the ruling by the Circuit Court would be binding on the whole Circuit, and if two Circuits disagree, it goes to the Supreme Court.

    So right now there is a legal ruling that is in force that says this, and any other Judge in the US is free to agree and point to it as a reference, but they aren’t (yet) bound to it.

    Someone who knows more technical legal rules, correct me if I am wrong.

  13. Lymis says

    Jeff, you’re right, but as some of the amici for the SCOTUS case pointed out, it’s not so much that you can’t take rights away once they are given, but that you have to have a valid reason to do so.

    And since those rights were in place, simply voting them out by a majority using the kind of animus-driven media push that they did isn’t a valid governmental action. Whether or not there is any valid reason to limit marriage to fertile straight people in the first place, there is no valid reason to take it away just from gay people once it’s been validly given to them. Nothing about marriage changed from the point that they had it to justify taking it away.

  14. Craig Nelson says

    My sense is that there are 4 justices who believe each state should be left to its own devices on this. If there were 5 then prop 8 would have been upheld because that would have clarified the matter beyond peradventure. Reading Scalia’s dissent in Windsor makes that clear.

    So that means there are 5 votes to allow for same sex marriage which makes sense of Kennedy’s actions as well as statements at oral hearings by Ginsburg and others.

    But both Kennedy and Ginsburg have, I feel, given us the road map. The 5 are not minded to present a 50 state ruling at this stage.

    So I think if the 9th circuit or other circuit courts make positive rulings I feel they will not grant cert; if cert is granted they will opt for a DIG because the lower court is applying Romer, Lawrence, Windsor, ?Loving in a more or less correct way.

    The majority may then intervene where conflicts arise between rulings, there are contrarian rulings or just that the country has simply moved on and accommodated to same sex marriage in an uncontroversial way.

    I heard the strategy is to try to get there within 5 years. That sounds achievable if this theory is correct. AFER’s case is based on there being a strong constitutional basis for marriage equality. They didn’t get that ruling here but Prop 8 doesn’t exist anymore, after the case they brought.

  15. says

    Are we saying that the original decision of the Ninth Federal Circuit striking down Prop. 8 now stands as the law ?

    And does that ruling affect all bans on marriage for same sex couples unconstitutional on the basis of ‘equal protection’…….?
    So no State may enact a law which is in violation of the original Ninth Circuit Decision based on the Constitution.
    I hope I grasp this correctly !!!

  16. anon says

    Boies is getting way out ahead of this issue re the courts. First, he misspoke, the 14th amendment denies states the right to discriminate against their residents unless there is a compelling state interest. However, according to SCOTUS precedent and within the bounds of the DOMA (not prop 8) decision, gay rights is not a truly protected class. The only equal protection granted LGBT residents is against “animus”, that is, laws specifically targeting LGBT residents. You cannot apply the DOMA ruling to prop 8 or any similar state law.

    Second, the ruling of the ninth circuit was vacated on technical grounds, which means that they can rehear the case and still reverse the district court ruling on any grounds, not just on standing, so Boies is way wrong on applying standing as the only issue of cause here.

    Finally, there are other cases and precedents that are contrary to the district court’s ruling, which means that there is no prevailing case and there is no reason the district court’s ruling will carry anywhere else.

    Nice try, though.

  17. Bruno says

    I hope Boies is right about the 5 years. Back in 2009 shortly after Iowa & Vermont legalized marriage equality, I told someone on a bigot site (perhaps “The Dakota Voice” or something similar, I can’t remember)that we’d have nationwide equality in 10 years. I was just sort of creating a wild guess, but I’m hoping I was actually right.

  18. Artie_in_Lauderdale says

    @ anon,

    Your third paragraph is a straw man argument. Kennedy (as well as marriage equality proponents) are not relying on Walker’s district court opinion. It is the 9nth Circuit Court opinion that Kennedy relied on in his opinion.

    Your second paragraph is a joke. Are you seriously speculating that the 9nth Circuit Court will retry the case and reverse the district courts decision? There is not a snowball’s chance in hell of that happening, and you know it.

    Regarding your first paragraph, it isn’t necessary to use heightened scrutiny to arrive at the same conclusion that Kennedy arrived at. Kennedy described his method of scrutiny as “careful consideration,” which is known in legal circles as “rational basis plus.” There is actually a profound difference between “rational basis” and “rational basis plus.” Under “rational basis,” the burden of proof is on the plaintiff. “Rational basis plus” switches the burden of proof onto the state, and it’s difficult to overstate the strategic importance of that switch. “Rational basis plus” worked in Kennedy’s opinion in Romer v. Evans, it worked in Kennedy’s opinion in the DOMA case, U.S. v. Windsor, and it could certainly work in any number of future cases involving states without marriage equality.

    As far as your attempt to spread doom and gloom, I will quote your last sentence. “Nice try.”

  19. says

    I think Mr. Boies is getting carried away by his own rhetoric. Their case delivered marriage equality in California via a procedural technicality. That is far short of what they promised when they filed this lawsuit 4 years ago but tremendously important nonetheless.

  20. Michaelandfred says

    I’ve wondered about this over and over and couldn’t figure out why it wasn’t spoken more about. Vaughn Walkers ruling was very clear. It was the 9th Circuit that changed the ruling to a more narrow one and sent it off to the Supreme Court. With the 9th Circuit invalidated and Walkers upheld, by the courts ruling, we now have an upheld ruling by a federal Judge that marriage equality is a right.

    They can’t have missed this.

  21. jjasonham says


    Actually, I don’t think Boies is getting ahead of himself.

    The 14th amendment Section 1:

    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    The 14th amendment itself says nothing about compelling state interest. It’s saying that no state may abridge the privileges of US citizens, and it is careful to describe in the beginning what makes a person a US citizen. These privileges specifically refer to the laws that are in place, and how (and to whom) they can be applied. It doesn’t matter that gays aren’t “a truly protected class”. Being a US citizen is enough to have current marriage laws apply to gay people. That’s the reason people were frantically trying to get a marriage amendment passed to clarify “man and woman”.

    Compelling governmental interest has to be proven as something crucial (i.e. saving lives), not merely preferred, if a governing body wants to infringe on rights.

    In what situation would the DOMA ruling be applied to the Prop 8 ruling? It seems like the other way around…that the Prop 8 ruling was brought about because of the DOMA ruling.

    Yes, the Ninth Circuit’s ruling was vacated and remanded and they can rehear the case. It seems unlikely to be reheard because of the context of the technical grounds you mentioned. The ruling was vacated because the pro-Prop 8 group was technically not legally able to defend it in court, even though the court said they could. Those proponents only jumped in when the state of California refused to defend it’s law. So, yes, the court can rehear it, but who’s going bring it to court to defend??

    The DOMA ruling itself is strong enough to use when proving discrimination and the rationale behind it in each of these State bans. ‘Nuff said.

  22. says

    I’ll tell you what will knock down every gay marriage constitutional ban in the U.S.:

    A couple married in a state that permits same sex marriage will travel to or relocate to a state with a constitutional ban.

    Some emergency will happen – and the spouse will be denied as legal stranger. That will prompt another judicial challenge and the issue will escalate to the U.S. Supreme Court once again.

    This may take a couple of years but recall, several of the more conservative judges aren’t getting any younger. And there’s a good chance the next President will be a Democrat and that either President Obama or his successor will get to appoint more liberal justices.

  23. says

    “Boies is getting way out ahead of this issue re the courts.”

    @anon(the name is telling): Not as far as you’re getting behind on this issue re the courts and the reality of how these decisions will play out. The equality patchwork is unsustainable in practical and constitutional terms. Are you the same “anon” who the day of the rulings kept insisting on every Prop 8 thread that marriage returning to CA wasn’t at all a sure thing? Nice try, back at ya!

  24. GB says

    The old defenders like Kennedy and Boies are in it for REVENGE. They were word twisters as children. Houdini had nothing on them.

  25. DownSouth says

    Until someone makes equal marriage a US law, the south will not let LGBT people marry. They are as backwards and hate filled as they were in the civil war and will go against this until they are forced like in the civil war. To help us who are in the minority here someone needs to force all the states to change so we can get on to more productive things other than making sure these sadistic religious fanatics get their way.

  26. johnny says

    It’s only a matter of time.

    While I love the sentiment expressed by Boies, it’s not the reality of the situation. Every state will have to have a marriage equality (or marriage discrimination) case move all the way up to the supreme court for a decision. And that’s going to take a few years to happen.

    When enough of them get done, the fed will finally decide (most likely a congressional decision) that enough is enough and they’ll move to make marriage equality the law of the entire U.S.

  27. Kieran says

    If Bois is rigt, and the ruling can be used to challenge the Marriage Bans in every state, then I think Ken Mehlman should be required by the entire gay community to fly to each trial on his own dime and testify how he helped the Republicans put all of those marriage ban laws on the ballot in order to stir up anti-gay animosity to get voters out.

    If Ken Mahlman is TRULY sorry for what he did, surely, he would be up to that. It would be a useful testimony in establishing anti-gay bias in the passing of those laws and help to invalidate them the same way the anti-gay bias helped defeat DOMA at SCOTUS.

  28. JONES says

    Every state doesn’t have to have a case go to SCOTUS. Circuit courts (Court of Appeals) service many states and there are 11 circuit courts in the US. A ruling in CofA can cover the states within that region. The Ninth that heard Prop 8 covers 8 States.

  29. Abogado says

    I think someone already mentioned this, but the Ninth Circuit’s decision does not stand – it should have never heard the case because of the standing issue. Practically, this means the district court (J. Walker)’s decision stands. That was a very broad decision striking down Prop 8 on equal protection under the 14th Amendment. This is what Boies is discussing.

    That said, this decision really only matters under the district court’s jurisdiction. Good luck making any other state outside that jurisdiction abide by that ruling. This is why it will inevitably make its way back to SCOTUS. There’s no way around it. He’s technically right, but it’s mostly unenforceable anywhere else without a higher court requiring jurisdictions to follow the precedent.

    That said, judges in other jurisdictions who are more progressive can use the language there to perhaps do the same in other jurisdictions. Persuasive authority is important, it just isn’t going to matter that much until this works its way back to SCOTUS.

  30. Abogado says

    And also, why everyone is discussing Kennedy here is perplexing. He didn’t write the decision to kick the Perry case on standing. Roberts did. And Kennedy decided DOMA under the 5th Amendment, not the 14th.

  31. JONES says

    Kennedy’s opinion in DOMA will be sufficient for state bans on marriage equality to be challenged.

  32. James Taylor says

    Kennedys ruling on Prop 8 was a complete 180 from his vote on DOMA. According to his opinion, the prop 8 case should have went back to the oriinal Court where the correct ruling would be a “no trial” with Prop 8 standing. Kennedy said that the States should make the laws on same sex marriage, not the Federal Government. When the two sets of plaintifs came before the appeals court, the Ca. Attorney General refused to defend the voters decision, that’s where the other defendents were thrown into the appeals court. Since a plantiff can’t bring a case before an appeals court, without an adversary, and since Kennedy decided that the defendents didn’t have standing in the appeals case, the ruling should have been remanded once again, with the same plantiffs if they wish, but if the Attorney General continues to refuse to defend the voters position in the case, there can be no trial without adversarial parties and therefore the vote would stand. Until a time when both sides could and would perform according to the obligations set forth for both plantiffs and Defendents, THEN when those matters were settled to the courts confirmation, an appeal to the vote on Pop 8 could then take place. Since that hasn’t happened it should revert to the original, with Prop 8 being approved by the voters of Ca., until persons of both standing and defending could present before another appeals court.