In other news, those who feared that Judge Randy Smith’s none-too-persuasive dissent to the Prop 8 decision would be beefed up by a scorching 80-page dissent at the 9th Circuit today have nothing to worry about now. Judge Diarmuid O’Scannlain’s dissent is a thin broth for proponents of California’s anti-gay initiative. In one of the strangest constitutional gotchas ever filed, O’Scannlain’s claim today is that President Obama’s recent statement of support for same-sex marriage came with the caveat that the Constitution “left this matter to the states,” to be conducted in “a respectful way.” In the dissenters’ view, Obama got worked by liberals who would make the right to marry the one you love a federal constitutional issue. As Garrett Epps notes here, that isn’t exactly a resounding defense of the alleged reasons behind state anti-gay marriage initiatives. It smacks just a little of that classic playground argument popularly known as “I’m telling mom.”
Today’s decision from the 9th Circuit allows Prop 8 supporters 90 days to decide whether to appeal to the Supreme Court, which they now appear inclined to do. The two lawyers for the plaintiffs, Boies and Olson, were very clear in a call with reporters this afternoon that they believe the court will take the case. (Olson said they “may” consider it and Boies said it was “probably likely.”) Neither of them appeared inclined to game which case has better odds of being taken and both implied that the court might well take both and docket them for the same day, with argument taking place next spring and a decision by next summer. Olson answered questions about whether the courts are truly best situated to make decisions about state policy by explaining that when individuals are turned away at a county register’s office, “the courts are the only way,” and that public opinion has shifted so dramatically in favor of equal marriage rights, even in the three years since this lawsuit was filed, that it makes the case much easier for proponents of gay marriage to argue now. As he put it, "The more the American people understand and think about and appreciate the issue of how much it matters to individuals to be allowed to live with equality and dignity, the more the public accepts it as the right of those individuals and as the right place for America to be."
Boies and Olson were quick to note that while Gill and Perry arise in different contexts, the reasoning behind both is, as Boies put it, “essentially the same.” In each case, he explained, a history of discrimination against gay couples led to the harms caused. In each case he added, there was no truly reasonable rationale offered for the discriminatory measures. Both also clarified that while a victory on the narrow basis offered in the 9th Circuit would represent a “complete victory” for their clients, they’d be arguing for the whole package—fundamental rights to marry the one you love—at the Supreme Court as well.
It takes four justices to decide to hear a case, and that means that the years of national obsession over what Justice Kennedy might do now morphs into the eight other justices trying to decide which case to take based on what Justice Kennedy might do. I, for one, am grateful that the pressure is off the rest of us.
An old adage holds that you should ask and ye shall receive. Of course the older adage says lawyers shouldn’t ask a question to which they don’t already know the answer. The two Prop 8 lawyers are supremely confident on both fronts. The rest of us are no longer even sure what we are asking for.