As ThinkProgress explained this morning, the question of how supporters of equality win the Supreme Court case against the anti-gay Defense of Marriage Act is almost as important as the question of if they win. The same applies to a companion case that will be argued next Tuesday challenging California’s Proposition 8, Hollingsworth v. Perry. Here are four different ways that the justices could eliminate this anti-gay ballot initiative, ranked from most to least desirable:
- Marriage Equality For All: The Constitution says that “[n]o State” may “deny to any person within its jurisdiction the equal protection of the laws.” That means all fifty states. So the correct way for the Supreme Court to decide Perry is to announce that marriage discrimination against same-sex couples is not allowed in the United States. Period.
- Marriage Equality For Some Now, Marriage Equality For All Later: Although the law is clear that anti-gay discrimination is unconstitutional, it is far from certain that there are five justices prepared to bring Alabama into compliance with the Constitution, even if they are ready to restore marriage equality in California. To thread this needle, the Ninth Circuit offered a one-state solution that abolishes Prop 8 but does little to advance gay rights elsewhere. The Obama Administration proposed what now amounts to a nine-state solution, upgrading states with civil unions into full marriage equality states but leaving until another day states like Alabama. Ultimately, however, the most important question is not how may states are directly impacted by the Court’s decision in Perry, but whether the justices use the magic words “heightened scrutiny.” If they hold that anti-gay laws are subject to such scrutiny, it would mean that all discrimination against gay people will be treated with great skepticism by the judiciary — including any state law permitting marriage discrimination.
- A Good-For-This-Ride-Only Opinion: As we explained this morning, Justice Kennedy wrote two of the most important gay rights decisions in the Supreme Court’s history, but he wrote both of them very narrowly. It is possible that he will want to do the same in the Prop 8 case, striking down California’s anti-gay ballot measure without doing much else to advance the cause of marriage equality. Indeed, this is more or less the approach that the Ninth Circuit took in its opinion.
- The Jurisdiction Dodge: As with the DOMA case, the Prop 8 case presents a somewhat unusual jurisdictional issue — whether any court has the authority to hear an appeal to the trial court’s decision striking down Prop 8. Judge Vaughn Walker, the trial judge in this case, issued a very broadly worded injunction: “Defendants in their official capacities, and all persons under the control or supervision of defendants, are permanently enjoined from applying or enforcing” Proposition 8. Thus, if this injunction remains in effect, even because no court can claim the authority to narrow or vacate it, California will likely become a marriage equality state once more. The problem, as Marty Lederman points out, is that it is not entirely clear that Walker had the authority as a district judge to issue such a sweeping injunction. For this reason, in addition to the fact that it is better to achieve marriage equality on the merits than on a procedural technicality, a decision kicking the case on jurisdictional grounds is not a very desirable outcome.