Gay Marriage? Ruling May Hinge on How It’s Asked
Michal Czerwonka for The New York Times
By ADAM LIPTAK
Published: February 20, 2012
WASHINGTON — The key to getting the answer you want often depends on the question you ask. And sometimes the best answer is no answer.
Those principles seemed to guide theappeals court ruling this monthstriking down California’s ban onsame-sex marriage. In the process, they also scrambled the litigation strategies of the lawyers on both sides.
The majority did not accept the broadest argument pressed by Theodore B. Olson and David Boies, the celebrity legal team challengingProposition 8, the voter initiative that overturned a California Supreme Court decision recognizing a right to same-sex marriage.
Mr. Olson and Mr. Boies had urged the appeals court to find that the federal Constitution guarantees same-sex couples the right to marry — a rationale that would apply in all 50 states.
Judge Stephen Reinhardt, who may be the most liberal member of the famously liberal United States Court of Appeals for the Ninth Circuit, refused to bite.
He opted instead for a local solution. California’s voters, he said, had no legitimate reason to use “their initiative power to target a minority group and withdraw a right that it possessed.” Doing that, he said, violated the federal Constitution’s equal protection clause. The broader question could wait.
Many gay rights advocates breathed a sigh of relief. They had long been wary of the Proposition 8 suit, preferring a state-by-state litigation and lobbying strategy over betting the farm on a case that was likely to end up in the United States Supreme Court. Some said they hoped the justices would now decline to hear an idiosyncratic case affecting a single state.
“I’ve always thought that the smart thing to do is to win this case for California and to keep this case out of the Supreme Court,” said Nan Hunter, a law professor at Georgetown. “In this court at this time, it will be very tough to sell a challenge” to the roughly 40 states that prohibit same-sex marriage altogether.
There was a second notable aspect to Judge Reinhardt’s approach. He adopted the analysis of a 1996 decision written by Justice Anthony M. Kennedy, whose vote will be crucial when any same-sex marriage case reaches the Supreme Court. That decision, Romer v. Evans, struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. Judge Reinhardt emphasized the similarities between Proposition 8 and the Colorado amendment, which was also the product of a popular referendum.
Justice Kennedy often provides the decisive vote in ideologically divided decisions, and he has taken a special interest in cases concerning gay rights. He also wrote the majority opinion in Lawrence v. Texas, which struck down laws making gay sex a crime.
Therese Stewart, a lawyer for the City of San Francisco, which joined the lawsuit challenging Proposition 8, said there was a lot to like about Judge Reinhardt’s approach.
“We’ve got a victory,” Ms. Stewart said. “It not only lessens the likelihood that the court feels compelled to take the case, but it also gives the court an alternative route to rule in our favor.”
As for persuading the justices to find that there is an across-the-board right to same-sex marriage in the Constitution, she said, “It’s a fairly big ask.”
The losing side in the case must soon decide whether to seek review from a larger panel of the Ninth Circuit or head directly to the Supreme Court. Members of its legal team would not discuss their strategic calculations.
There have been suggestions, though, that they would be better off to seek further review in the appeals court. They could win, or, failing that, they could lose more thoroughly and so elicit a decision that the Supreme Court would feel compelled to hear and be more likely to reverse.
The winning lawyers, on the other hand, have long maintained that their ultimate destination is the Supreme Court, and it was not clear if they would be content with a victory limited to California. They said they would oppose a request for Supreme Court review, though perhaps not very strenuously.
“The Ninth Circuit’s decision is clearly correct, applying Supreme Court precedent to the facts, and normally that would make it tougher to get Supreme Court review,” said one of the lawyers, Theodore J. Boutrous Jr. “But we recognize that this case presents exceedingly important constitutional issues and that the Supreme Court is likely to take a close look at a petition from the antimarriage forces. We’re ready for whatever happens.”
There is a third way to pose a legal question about same-sex marriage, but the cases asking it are moving slowly. A month before a trial judge in San Francisco first struck down Proposition 8, a judge in Boston struck down a part of the federal Defense of Marriage Act, which denies federal benefits to gay and lesbian couples who married in states that recognize such unions.
Consider how different the question sounds in the context of the Defense of Marriage Act. A ruling for the plaintiffs challenging the law would not require any state to allow same-sex marriages. It would not require a court to override the wishes of voters who supported a referendum or to question their motives. It would not concern cosmic issues but ones as mundane as the proper treatment of flexible spending accounts.
Still, the Defense of Marriage Act and Proposition 8 cases ask the same basic question: Does the government have a sufficient reason to treat gay couples differently from straight ones?
But the same question can sound different in different contexts. The future of same-sex marriage may well turn on which version of the question reaches the Supreme Court first.
Correction: February 20, 2012
A photo caption with an earlier version of this article incorrectily identified the court that ruled against Proposition 8 on Feb. 7. It is a federal appeals court, not the California Supreme Court.