By Associate Professor Doug NeJaime
Associate Professor Doug NeJaime wrote about the potential implications of Perry v. Schwarzenegger in a post last week. He live-Tweeted today's oral arguments.
While the first hour of oral argument in Perry focused on the question of standing, the second hour moved on to the meat of the case: the substantive merits regarding Prop. 8 and same-sex couples' right to marry. And here all three judges seemed genuinely interested in a narrow framing of the case--as one about whether California has a legitimate interest in taking away the label "marriage" from lesbian and gay Californians while leaving intact a comprehensive domestic partnership regime that provides the rights and benefits of marriage. In other words, can the Ninth Circuit rule that Prop. 8 is unconstitutional without directly impacting marriage restrictions in other states? Indeed, even Judge Smith, the most conservative judge on the panel, pointedly asked Charles Cooper, attorney for the Prop 8 proponents, whether one can find that California lacks a rational basis for the law without also finding that other states lack a rational basis for their marriage bans.
This narrow framing does not appear to be the plaintiffs' strategy of choice. They have consistently argued that lesbians and gay men enjoy a fundamental right to marry under the federal Due Process Clause and that classifications based on sexual orientation should (like race) be subject to strict scrutiny under the federal Equal Protection Clause. Yet various amici have been pushing a more limited framing of the case. The judges appear to have taken these arguments seriously, pressing the lawyers on the complexities of the California-specific reading. Although Ted Olson, arguing for the plaintiffs, maintained his position in favor of a more sweeping ruling, he nonetheless indulged the judges' interest in the more limited reading and set out a compelling argument that Prop. 8 fails a less searching level of scrutiny. And Terry Stewart, representing the City of San Francisco, argued forcefully that the Ninth Circuit could find Prop. 8 invalid under rational basis review because it constitutes nothing more than a classification for its own sake.
The panel's intense focus on the California-specific reading of the case made Romer v. Evans, the U.S. Supreme Court decision invalidating Colorado's Amendment 2, especially central to the argument. And, perhaps unsurprisingly, it was Justice Kennedy who wrote for the majority in that case. The Ninth Circuit panel, or at least Judges Reinhardt and Hawkins, may be preparing to craft a decision favorable to same-sex couples that relies explicitly on Justice Kennedy's earlier reasoning. This would deliver the issue to the U.S. Supreme Court in a way that allows Justice Kennedy to continue where he left off in Romer.
If this less sweeping, more California-centric understanding of the case prevails at the Ninth Circuit, the U.S. Supreme Court would be directly presented with a way to rule in favor of lesbian and gay equality while leaving intact the discriminatory laws of the majority of states. The bigger question of a nationwide right to marry for same-sex couples would continue to wait for its day in court.