By Edward Stein, Vice Dean, Professor of Law, and Director, Program in Family Law, Policy, and Bioethics at Benjamin N. Cardozo School of Law, Yeshiva University.
Judge Vaughan Walker's decision in Perry v. Schwarzenegger striking down Proposition 8, the California anti-marriage ballot measure from 2008, is a dramatic and sweeping victory for advocates of marriage equality and LGBT rights. The legal theories that undergird the decision, if affirmed on appeal, could radically change the landscape for same-sex marriage across the country. Today's decision is just another step in the long road to resolving the legal issue of same-sex marriage in California and the even longer road to a resolution across the nation. It will likely be a couple of years before the Supreme Court gets a chance to assess Walker's decision, and, for reasons discussed below, the Court may well not hear this case at all.
The Context of Prop 8
The quest for marriage equality for LGBT people in California is a story of successes and setbacks. In 2008, the California Supreme Court held that the state's marriage law was unconstitutional. After this ruling, thousands of same-sex couples were legally wed in California. In response, opponents of same-sex marriage proposed a ballot initiative to amend the state constitution so as to effectively undercut the ruling of the California Supreme Court. In November 2008, a majority of California voters supported this amendment, known as Prop. 8, thereby preventing additional same-sex couples from marrying in California. In 2009, the California Supreme Court upheld Prop. 8.
Judge Walker's Opinion
The case before Judge Walker, unlike the prior cases related to same-sex marriage in California, was in federal court (the U.S. District Court in San Francisco), and the plaintiffs' arguments were based exclusively on the U.S Constitution. Walker's decision rests on two distinct constitutional theories: (1) that prohibiting same-sex couples from marrying violates the Due Process Clause of the US Constitution and (2) that it violates the Equal Protection Clause of the US Constitution. At this level of abstraction, Walker's decision was like the decisions of some state supreme courts-including the California Supreme Court-that have held that prohibition on the legal recognition of same-sex relationships are unconstitutional on both equal protection and due process grounds. Walker's decision, which directly addresses only the legal situation for same-sex couples in California in light of Proposition 8, differs from prior state court decisions ruling in favor of same-sex marriage because it rests solely on the U.S. Constitution.
Patchwork of Recognition and Non-Recognition
If upheld by the U.S. Supreme Court, which almost certainly wouldn't address this case for at least two years (if it hears an appeal in this case at all), the legal approach taken by Judge Walker would have a dramatic impact across the nation. Currently, there exists a bizarre patchwork of recognition and non-recognition for same-sex relationships across the country. Six states-Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and Maine-and the District of Columbia allow same-sex couples to marry. Four other states-New Jersey, Oregon, Washington and California (at least for now)-give legal recognition to same-sex relationships that provide almost all the same benefits and obligations of marriage to same-sex couples, but outside of the institution of marriage (New Jersey calls such relationships civil unions, while the other three call them domestic partnerships). In contrast, twenty-eight states have taken the same approach that California did in passing Proposition 8: they have amended their state constitutions to prohibit same-sex marriage. If the Supreme Court embraces the two arguments at the heart of Judge Walker's decision, this patchwork (which is actually considerably more complicated than the picture I have painted here) will disappear because it would be unconstitutional for any state to refuse to marry same-sex couples.
The Role of Justice Kennedy
Of course, predicting what the Supreme Court will do on such a controversial issue is no easy feat. Many commentators assume that Justice Kennedy would be the crucial swing vote. Significantly, Kennedy wrote majority decisions in two landmark gay rights cases - Romer v. Evans and Lawrence v. Texas. In Romer, the Court struck down a Colorado ballot initiative that amended that state's constitution to prohibit the state and its political subdivisions from passing laws protecting against discrimination on the basis of sexual orientation. Kennedy held that the Colorado amendment violated the Equal Protection Clause of the United States Constitution because it lacked any rational basis but, rather, was solely based on animus towards gay people. In Lawrence, the Court struck down Texas's sodomy law, which criminalized certain sexual acts between people of the same sex but between people of different sexes. In sweeping language, Justice Kennedy, writing for the majority, held that the Texas sodomy law violated the Due Process Clause of the U.S. Constitution. Lest one be too optimistic, Kennedy, in his opinion in Lawrence, specifically said that the issue in that case was distinct from whether to give legal recognition to same-sex relationships.
Will It Get to the Supreme Court?
Whether this recent California decision will make its way to the Supreme Court depends on what the Court of Appeals for the Ninth Circuit does with the case. The Ninth Circuit could reverse Judge Walker's decision, it could affirm it and accept the legal theories embraced by Walker, or it could uphold the result but on more narrow legal grounds, perhaps related to the specifics of what happened in California. A much narrower ruling by the federal appellate court might lead the Supreme Court to refuse to hear an appeal. What ultimately happens could also depend on the political process in California. If the California voters repeal Proposition 8, as some polls suggest they might, that could moot the question of whether that amendment is constitutional and avoid an appeal of Walker's decision to the U.S. Supreme Court. Finally, what happens could also relate to what, if anything, happens in the Supreme Court regarding a pair of July 2010 decisions of a federal district court judge in Massachusetts about the Defense of Marriage Act (DOMA), namely Gill v. Office of Personnel Management and Commonwealth v. U.S. Department of Health and Human Services. DOMA, in part, defines marriage as between one man and one woman for purposes of federal law. The federal judge in Massachusetts held that Congress, in defining marriage as it did, violated the U.S. Constitution by failing to defer to each state's definition of marriage. The Massachusetts cases, which address quite distinct questions about marriage from the case decided by Judge Walker, may well reach the Supreme Court first and how the Court approaches the DOMA cases may re-shape the political and legal landscape against which this California case is ultimately resolved.
Walker's decision is remarkable in many ways and LGBT rights advocates have much cause for celebration. But the long-term consequences of this decision remain elusive.