Prop 8 Ruling Gives California Same-Sex Marriage, and Other States an Opening

The Supreme Court's language is cautious but the impact is big. (Are citizen-passed propositions this easy to evade?)
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Paul Katami and Jeff Zarrillo, plaintiffs in the Proposition 8 case, leave the Supreme Court after Wednesday's ruling. (Jonathan Ernst/Reuters)

By sidestepping a ruling on the merits of California's gay-marriage ban, and at the same time striking down the heart of the Defense of Marriage Act, the United States Supreme Court Thursday morning made at least three things perfectly clear: same-sex marriage is here to stay in those states that now recognize it; Congress may not undermine same-sex marriage rights that today are recognized in those states; and America is in for years more political and legal wrangling over the extent to which such marriages will spread across the country.

My Atlantic colleague Garrett Epps is focusing today on the Court's decision in United States v. Windsor declaring the federal Defense of Marriage Act unconstitutional on equal protection grounds. As he notes, the majority opinion from Justice Anthony Kennedy tracks his decades-long sensitivity to the rights of gays and lesbians. I focus here on the Court's cautious ruling in the Proposition 8 case, styled Hollingsworth v. Perry, and what it likely portends for the future both of same-sex marriage and of the legal and political debate over it.

In Perry, the Court did what it did just this past Monday in the affirmative action case -- it avoided a definitive ruling in a case with huge social ramifications. Except that in Perry there was even less consensus on avoiding the merits than there was in Fisher v. University of Texas. In Perry, by a 5-4 vote, in an opinion written by Chief Justice John Roberts, the Court ruled that the private parties that had appealed a trial judge's opinion striking down Proposition 8 had no legal right, no "standing," to bring the appeal. The Court in effect restored that trial court ruling -- and thus restored same-sex marriage in California -- but in California alone.

So now is as good a time as any to go back and read the lengthy August 2010 ruling issued by Judge Vaughn Walker, an appointee of George W. Bush, when he struck down Proposition 8 as a violation of the due process and equal protection clauses of the Constitution. It is time to recall how one-sided the Proposition 8 trial was -- how utterly unprepared were the initiative's lawyers and witnesses when confronted with the facts and the law as presented by David Boies and Ted Olson, two of the brightest lawyers of their generation and, today, heroes to the same-sex marriage cause. The trial was a rout, and now its result is the law.

After Judge Walker struck down Proposition 8, state officials in California decided not to defend it on appeal (much in the same way that the Obama Administration, in the wake of decisions striking down the Defense of Marriage Act, no longer defends the federal law). It was left to private opponents of same-sex marriage, folks who were proponents of Proposition 8, to take up the appeal. Not good enough, the Court said. "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to," wrote Chief Justice Roberts. "We decline to do so for the first time here."

The dense, technical language of the Perry decision -- both the majority ruling and the dissent by Justice Anthony Kennedy -- belie the significance of what the case means. It means that same-sex marriage now may resume in California. It means that those thousands of same-sex couples who were married before Proposition 8 passed in 2008 may no longer live under the shadow of a ballot initiative that sought to nullify those marriages. It means that the Court has tacitly accepted the premise that the federal Constitution could bar bans on gay marriage.

But there is plenty that the language of Perry does not say. The Court refused to explicitly endorse the results or the reasoning of Judge Walker's decision. This means there is still no command from the justices that the federal Constitution does (or does not) outlaw bans on gay marriage, a conclusion Judge Walker reached with full force after a remarkable trial. This in turn means that those states that do not today recognize same-sex marriage don't have to. Perry, it turns out, was not the national case many hoped it would be. And that's precisely what the cautious Court wanted.

In the Fisher case on Monday, the Court's four liberals signed onto the decision sending the dispute back to the courts below for more analysis. They did so because they knew that they would not likely like the merits ruling they would get if the Court's five conservatives were to rule substantively on affirmative action. The same thing happened today in Perry, only in reverse. This time, it was the Court's conservatives, at least two of them anyway, who may have figured the best they could do was delay a substantive decision on the interplay between state marriage bans and the equal protection clause of the Constitution.

In any event, that's the broad view of Perry. The Court's majority saw a convenient out -- the issue of standing -- and took it. And now the justices will sit back and watch new legal and political skirmishes arise over the next few years. There will be, indeed there already are, new challenges both to same-sex marriage bans and to same-sex marriage laws. And there are, at the end of all of it, thorny constitutional questions the justices must one day answer about same-sex marriage and its interplay between and among the states and the federal government -- questions Justice Antonin Scalia today asked in Windsor with his usual aplomb.

But there are three more things you ought to know about this ruling. First, the majority opinion reads like an ode to the friend-of-the-court brief filed by Walter Dellinger, the progressive legal scholar and former Obama and Clinton Administration official, who argued that the private parties pushing the Proposition 8 appeal had only a "generalized interest" in the outcome of the case. Chief Justice Roberts cited the Dellinger brief for the proposition that private parties have duties too mercurial to be relied upon. "As one amicus explains," the Chief Justice wrote, "'the proponents apparently have an unelected appointment for an unspecified period of time as defenders of the initiative, however and to whatever extent they choose to defend it.'"

Second, the makeup of the dissent in Perry is telling. It may tell other people other things but it tells me that Justices Kennedy -- ever true to his roots as a supporter of gay rights -- and Sonia Sotomayor were willing to rule on the merits of Proposition 8 in a way that would more broadly recognize same-sex marriage rights, at least in California. And it tells me, on the contrary, that Justices Clarence Thomas and Samuel Alito, win or lose, were spoiling for the opportunity to endorse Proposition 8 as a lawful expression of the public's disdain (at least in 2008) for such marriages. Usually, when the Court punts like it did here, it punts without a 5-4 ruling.

Third, and this is likely to be under-reported in the crush of coverage over same-sex marriage, is the implication of the Perry case on future ballot initiatives, whether or not they have anything to do with gay marriage. As Justice Kennedy pointed out in his dissent, the Perry case, arguably, could permit state officials who disagree with the results of ballot initiatives to routinely walk away from them in a way that thwarts the purpose of the initiative process. I'm not much into guarantees, especially with this Court, but I guarantee you that the Perry case will be cited for this technical proposition far more quickly and more often than it will be cited as any sort of victory or defeat for same-sex marriage advocates.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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