A Losing Proposition
Why gay-rights leaders don’t want their big Prop 8 victory to go to the Supreme Court.
Yet the Supreme Court is not obliged to follow the 9th Circuit’s logic. It could opt to reopen the larger question of a constitutional right to gay marriage. And if it did, odds are that it would not be in favor of establishing such a right. Not this court, anyway.
The DOMA cases, by contrast, don’t broach the deeper civil rights question. Instead, they frame the question in terms of a different set of rights: states’ rights. The question before the court is whether the federal government overstepped its authority by denying states the right—a right they have always enjoyed—to create their own definitions of marriage. It’s a 10th Amendment argument that Anthony Kennedy could easily get behind, and leaves thorny issues of privacy and fundamental individual rights for another day.
And ironically, given the deliberate modesty of the DOMA challenges, the potential rewards of a DOMA ruling by the Supreme Court now exceed those that could realistically be expected in a Prop 8 ruling. Sure, DOMA has already been weakened by the Obama administration’s announcement last year that its attorneys would no longer defend it in federal court. But it’s still the law and it affects residents of all states with gay marriage laws—not just California—by denying federal recognition of those unions. A DOMA win would be national in scope. And it would keep the federal government on the sidelines as more and more states take their own stands on the issue. Just Wednesday, Washington’s legislature put the state on the verge of becoming the nation’s seventh to recognize same-sex marriages.
Advocates like Evan Wolfson, the father of the same-sex marriage movement, nevertheless insist they’re not losing sleep over the prospect of Prop 8 reaching the high court first. “We can’t control which case, if any, of the current cases is going to get to the Supreme Court, or who might be on the court when it gets there,” Wolfson said. “What we can control is that we do everything in our power to maximize our chances of winning.”
That’s true. Still, he and others who have fought hard to overturn DOMA had to have been at least a little relieved that the 9th Circuit didn’t go out of its way to make a splash with Tuesday’s decision. The most liberal of the country’s federal appeals court, the 9th is also the most frequently overruled by the Supreme Court. (The main DOMA challenges are coming out of the 1st Circuit.) Even David Boies, the more liberal of the two lawyers arguing against Proposition 8, acknowledged in a post-victory conference call that the narrow ruling in California could make the Supreme Court less likely to take the case.
Interestingly, his fellow counselor, Olson—a Republican whom a few conspiracy-minded liberals once suspected of trying to sabotage the gay-marriage cause by fighting Prop 8—wasn’t quite on the same page. The 9th Circuit’s decision, he asserted, “ringingly reaffirmed the right to equality, the fundamental right to marriage and the fact that it cannot be denied to citizens on the basis of their sexual orientation or the basis of their sex."
In theory, anyone in the gay rights movement would endorse those sentiments. It’s just that they’re wary of asking Anthony Kennedy if he does too.