Several people have asked me questions recently about the marriage case in federal court in San Francisco (the case brought by Ted Olson and David Boies). In this first post, I’ll cover possible outcomes, consequences, what might happen in the court where the case is now, and what might happen in the Court of Appeals. I’ll post tomorrow on what might happen if the case gets to the Supreme Court.
1. Four Possible Outcomes.
There are essentially four possible outcomes in the San Francisco marriage case (Perry v. Schwarzenegger, the case brought by Ted Olson and David Boies): the Big Win, the Smaller Win, the Smaller Loss and the Big Loss.
The Big Win would be the ruling the lawyers were shooting for when they filed the case: a decision saying that it is unconstitutional for a state to refuse to marry same-sex couples. A decision like that from the U.S. Supreme Court would mean that same-sex couples could marry in all 50 states.
The Smaller Win would turn on the fact that through its Domestic Partnership system, California gives the same legal rights to same-sex couples that it gives to married couples. A court could focus on that, and say that since the state gives all couples the same legal treatment, the only reason it could possibly have for giving some relationships a different name would be to make a statement that some relationships are not as good, not as important. The court could then strike down Proposition 8 saying that the federal Constitution doesn’t allow states to pass laws just to declare that some people aren’t as good as others.
The Smaller Loss, like the smaller win, would turn on the existence of California’s Domestic Partnership system. A court could say that federal courts only rule in cases with tangible, concrete harm. It might rule that since California gives the same tangible legal rights to all couples, there is no real harm of the sort that courts deal with.
The Big Loss would be a ruling that it is not unconstitutional for states to refuse to marry same-sex couples. The catastrophic version of that (not very likely as I’ll explain below) would be a ruling that, in general, it isn’t unconstitutional for states to discriminate on the basis of sexual orientation.
2. The Possible Consequences.
The Big Win from the Supreme Court, as I said, would give us marriage nationwide, taking down marriage laws in 43 states and effectively taking down the so-called Defense of Marriage Act (DOMA) as well. That might not necessarily mean the fight would be over. If conservatives regain control of Congress, they could well push for a federal marriage amendment again. That might be harder for us to fight than it was during the Bush years, when lots of moderates voted against it as “unnecessary” since we had DOMA. And we could see a kind of backlash fight in state legislatures like the fight that followed the Court’s 1973 decision upholding a women’s right to choose.
The Smaller Win, at the Supreme Court, would mean that same-sex couples could marry in California, New Jersey, Oregon, Washington and maybe Nevada. These are the states with full partnership, but not marriage. This would have one unhappy downside. State legislatures would probably be less inclined to pass Civil Union or full Domestic Partnership laws, because they would know that under the case, the full partnership would be almost immediately be converted to marriage by the courts.
The Smaller Loss at the Supreme Court would mean that Civil Unions and full Domestic Partnerships don’t automatically lead to marriage. A loss like this would leave open the question of whether the federal Constitution requires states to give the same legal treatment to same-sex and opposite-sex couples (that issue, the Court could reason, isn’t in the case since California already did it). This sort of ruling could, if it were technical enough, possibly even leave the marriage question open. A decision like that would make it harder to win state cases like the marriage cases in Connecticut and California, which relied on a lot of federal constitutional law to go the right way.
The Big Loss would mean that unless and until we could convince the court to change its mind, the only way to get marriage would be through state courts, state legislatures or Congress (pretty unlikely). The catastrophic version of the big loss would pretty much take sexual orientation discrimination claims out of federal court (again as I’ll explain below, pretty unlikely).
3. The First Stage: District Court.
Like all federal cases, Perry started in a District Court, the United States District Court for the Northern District of California in San Francisco. The Judge is Vaughn Walker, nominated to be a judge by Ronald Reagan, confirmed after being renominated by George H. Bush.
In the first order he issued in this case, Judge Walker made it clear that he was ready to give the plaintiffs the chance to put all the arguments about marriage on trial—for example, how the marriages of same-sex couples “harm” heterosexual marriages, and whether heterosexuals make better parents. The order made it clear he would do that so long as the plaintiffs were willing to do a full trial. That wasn’t the lawyers’ original strategy—they wanted to go up to the Supreme Court on purely legal arguments. But they soon saw this for what it was: a matchless opportunity to get to the truth behind all the rhetoric about gay people and marriage.
The plaintiffs also realized that the odds were that if they gave Walker the record he wanted, they’d likely win. So the plaintiffs gave him the trial he asked for, and by all accounts, they did a fine job of it. My guess is that he’ll give them the decision they want—both the big and little wins. I don’t think the reason Walker will do this is because he’s gay—I have no idea whether he is and he’s said nothing about it publicly. I think he’ll strike down Prop. 8 because after the record that’s been made, I think he’ll conclude, like most constitutional lawyers, that discrimination based on sexual orientation shouldn’t be treated as generally permissible. If it isn’t, it is very difficult to come up with a credible argument for excluding same-sex couples from marriage.
It’s a little hard to tell when the case will end in District Court. Although the trial is over, the case remains open while some disputes about evidence get worked out.
4. Second Stage: The 9th Circuit.
If you lose a case in District Court, you usually have a right to appeal. There is a technical chance that this case won’t be able to be appealed. If it weren’t, the case would be over and that would be the end of Prop. 8. But the decision wouldn’t affect any other state.
The odds are that once the case does end in District Court, it will head to the U.S. Court of Appeals. There are 13 “Circuits” in the Court of Appeals, and the one covering the westernmost states is called the 9th Circuit. The 9th is the slowest of the circuits, and cases usually take two years and sometimes longer to get through it. If Judge Walker strikes down Prop. 8, and it does go to the Court of Appeals, it is very likely that his decision will be stayed—meaning it won’t take effect—while the case is on appeal.
Beyond that though, it’s difficult to predict what will happen in the 9th Circuit. The 9th is thought by many to be the most progressive circuit. But it is also a big court, with a fair number of conservative judges, and decisions are made by panels of just three. A case can be “reheard” by a panel of 11. But there’s no guarantee of a progressive majority there either.
If I had to guess, I’d guess a “smaller win” or a “smaller loss” at the circuit. Even the conservatives on the 9th Circuit won’t have much stomach for sweeping pronouncements about discrimination against gays being generally permissible. Even the progressives are likely to be modest in the hope they won’t set up too tempting a target for the conservatives on the Supreme Court. And Circuit Courts are institutionally conservative; they’re not supposed to go farther than they need to, and they tend not to.
Tomorrow: At the Supreme Court…