Marriage equality's road to the Court

By Associate Professor Doug NeJaime

This is the third installment in the 11-part series, "11 on '11," in which Loyola Law School professors are weighing in on what they expect to be the biggest legal issues in their fields in 2011. (On Monday, Dec. 6, Professor NeJaime will live Tweet the Ninth Circuit Court of Appeals oral arguments in Perry v. Schwarzenegger beginning at 10 a.m. PT. He will provide follow-up analysis on Summary Judgments afterward.)

Everyone now seems to agree: The U.S. Supreme Court will eventually take up the issue of marriage for same-sex couples. But an open question remains: in what context?

Two potentially landmark federal cases are working their way through the courts. The first, Gill v. Office of Personnel Management, is a carefully constructed piece of movement advocacy. LGBT rights lawyers have long avoided the issue of marriage in the federal courts, preferring instead to work with sympathetic state courts (and, increasingly, legislatures) and keep the issue away from a generally conservative U.S. Supreme Court. But after a series of state-level victories, lawyers at Boston-based Gay & Lesbian Advocates & Defenders (GLAD) filed their Gill complaint, which challenges the unequal treatment of Massachusetts married couples (same-sex vs. different-sex) under the federal Defense of Marriage Act (DOMA). DOMA prohibits the federal government from recognizing same-sex "spouses," thereby creating two separate systems of federal treatment of couples who are married for Massachusetts state law purposes.

Meanwhile, in the wake of Proposition 8, which amended the California Constitution to prohibit marriage for same-sex couples, the newly formed American Foundation for Equality Rights (AFER) filed Perry v. Schwarzenegger, a federal constitutional challenge to the ban. While LGBT rights lawyers refused to challenge Proposition 8 in federal court and discouraged AFER from doing so--preferring instead to work at the state level--famed litigators Ted Olson and David Boies took the case.

Both cases are slowly working their way up the federal appellate chain. The federal District Court of Massachusetts recently ruled that DOMA violates the federal equal protection guarantee, as applied to Massachusetts same-sex couples. While the case sits at the First Circuit Court of Appeals, GLAD has filed a similar challenge, in the federal District Court of Connecticut, on behalf of married same-sex couples in Connecticut, New Hampshire, and Vermont. The Perry plaintiffs also received a favorable district court ruling, in which the Northern District of California federal court found Proposition 8 violative of federal due process and equal protection guarantees. The Ninth Circuit will hear oral argument in the case on Monday and will consider questions of standing in addition to the substantive constitutional merits.

The popular commentary on Gill and Perry generally features two starkly contrasting pictures of how the issue of marriage equality would arrive at the Court. Perry presents the broad constitutional challenge, seeking to usher in a regime of marriage equality (as a federal constitutional matter) that would invalidate the laws (many of them state constitutional amendments) of a clear majority of states. Gill signals another step on the incremental march toward marriage equality, allowing the Court to strike a blow for LGBT rights advocates but doing so in a way that only directly affects states that have moved firmly toward marriage for same-sex couples.

This dichotomy, however, oversimplifies the trajectory of marriage equality and the Court's potential intervention. Instead, Perry, like Gill, might allow the Court to take an incremental step toward marriage equality. Rather than rely on a fundamental right to marry or rule that sexual orientation constitutes a suspect classification under the federal Constitution, the Court could find that California lacks a rational basis, under federal equal protection principles, to distinguish between different-sex and same-sex couples.

California's regime is unique: The state has been at the forefront of sexual orientation equality, adopting antidiscrimination laws, recognizing the parental rights of lesbians and gay men, and providing a domestic partnership status that furnishes substantially all of the state-based rights and benefits of marriage. Furthermore, after the California Supreme Court's In re Marriage Cases decision, the state allowed same-sex couples to marry, and the court later ruled, in Strauss v. Horton, that those approximately 18,000 marriages would remain intact even after Proposition 8. Indeed, the state legislature, which twice passed marriage equality legislation only to see a gubernatorial veto, passed legislation clarifying that same-sex marriages from other states entered into before Proposition 8's passage would be valid and recognized in California. Even the Perry litigation itself evidences the pro-gay position of the state of California, as both Attorney General Jerry Brown and Governor Arnold Schwarzenegger have refused to defend the law in court (thus giving rise to the standing issue that the Ninth Circuit will address).

What Perry presents, then, is a starkly different challenge than what might emerge from other, less gay-friendly states. Proposition 8 amended the California Constitution to eliminate a right that had been recognized by the state supreme court and had been exercised by a number of California citizens. And it took away that right while leaving intact a completely separate domestic partnership regime that maintains the same substantive rights and benefits for same-sex couples without the title "marriage." Captured in this light, Proposition 8 begins to look a lot like a measure that creates two distinct classes of citizens for the mere purpose of singling out an unpopular group for unfavorable treatment. Such a measure seems unconstitutional even under a more deferential standard of review, such as the one applied by the Court in its landmark sexual orientation equal protection ruling, Romer v. Evans, which struck down Colorado's Amendment 2 under some form of rational basis review. As LGBT rights organizations and a handful of law professors have convincingly demonstrated in Perry amicus briefs, a court could apply Romer to rule in favor of marriage equality while limiting the direct impact of its ruling to same-sex couples in California. Through this lens, Perry and Gill start to look a lot more similar. Of course, this is not the reading of Perry that AFER and its lawyers are pushing. Such a reading would require the Ninth Circuit, and eventually the Supreme Court, to look for a more limited way to approach the case and to take seriously arguments advanced in amicus briefs.

In the end, regardless of which case the U.S. Supreme Court confronts first--Gill or Perry--five justices would be able to issue a relatively narrow ruling favorable to same-sex couples, thereby balancing their awareness of still-split public opinion with an increasing awareness of the need for sexual orientation equality.