Posted last night and moved up, with a flow chart created by Slog reader Barry that outlines some of the scenarios for Prop 8.
CLICK TO ENLARGE: A few possible outcomes for Prop 8 (Please note, this doesn't encompass every possible path for the lawsuit—just the most likely scenarios.
This morning on Twitter, superstar Slog commenter Joe Szilagyi asked this question: “So what happens if the 9th [U.S. Circuit Court of Appeals] affirms the decision to toss Prop 8, but the Supremes decline to take it up?” After I retweeted the question, local politico Anne Martens replied, “Then the ruling of unconstitutional stands.”
Well, news broke a couple hours later that the the case was appealed to the 9th Circuit, thereby elevating the question of Prop 8’s future—and rights of same-sex partners—to the nation’s penultimate strata of justice (and drawing a path to possibly reach the Supreme Court). So indeed, what could happen now that Prop 8 has been declared unconstitutional by one federal court and two more courts have a stab at it?
I posed that question this afternoon to Jon Davidson, legal director of Lambda Legal, which has filed an amicus brief in the case and stands as one of the county’s strongest litigators on LGBT rights.
What the 9th Circuit Could Do:
Generally speaking, Davidson says, “If the 9th Circuit upholds the outcome, then Prop 8 would be struck down and same-sex couples could marry again in California, and the voters of California could not do anything about that in the future.”
In a more specific outcome—if the court rules using precisely the same reasoning as yesterday’s ruling from Justice Walker—Davidson continues, “then same sex couples would be allowed to marry in all nine states in the 9th Circuit, including Washington…. But the ruling would be only binding in the 9th circuit.”
That would be the best possible outcome for the gays (both in terms of more people getting marriage rights and also because Walker’s ruling was definitive in finding Prop 8 unconstitutional while debunking anti-gay myths). But it’s unlikely, Davidson says, because the 9th Circuit could be inclined to avoid a ruling that legalizes gay marriage in all nine states.
“They might say that we don’t have to decide if same-sex couples have a fundamental right to marry, and we don’t have to decide if it denies equal protection to deny them the right to marry in general,” Davidson explains. Instead the court could push for a more nuanced distinction between states based on their existing laws: “In a state like California, where the couples are given all the rights of marriage through domestic partnership, there is not a legitimate state reason to deny them the status and name of marriage,” he says. “They could say the only reason they are being denied that status and name is to single them out as different and unworthy of marriage—and the state cannot do that. But they would not decide whether or not a state might be required to allow same-sex marriage.”
“Depending on how narrow they rule, it could apply to just California, where there are 18,000 same-sex couples who are currently married," Davidson continues. "Or it could cover California, Oregon, Washington, and Nevada—which are states that [already] provide comprehensive partnership rights.”
In other words, it’s more likely the 9th Circuit court may decide that states can’t allow an unconstitutional separate-but-unequal distinction between domestic partnerships and marriage.
That sort of narrow ruling would create a couple potential advantages for the Supreme Court.
If the Supreme Court Refuses to Hear the Case:
This narrow ruling from the 9th Circuit sidesteps the big scary question of legalizing gay marriage, so the court could—to answer as Joe's questions gets to—let it stand. “Depending on how they rule, the Supreme Court might be less interested in hearing the case," Davidson says. "In a ruling that just concerns California only, where the couples can already get the legal rights of marriage, it raises a less broad issue.”
So if the Supreme Court refuses to take it, Washington could be in a very good position to benefit from legal gay marriage because we already have a compressive domestic-partnership program on the books.
After the jump: What could happen if the Supremes take the case.
The Supreme Court may have another reason to refuse to hear the case—at least initially.
Davidson notes that “there are two other cases headed to the Supreme Court that were decided last month in Massachusetts [where gay marriage is legal]… that said the federal government can’t decide that some marriages will be honored but not others.” The outcome of those cases could affect whether the feds must recognize other state rulings and laws that permit gay marriage. The Supreme Court may then get the Prop 8 case and, rather than take it, “send it back to lower court to reconsider it in light of what we have said” about the cases arising from Massachusetts.
But the 9th Circuit phase is about much more than the nine states and the gays who live there.
“I think the main issue at the 9th Circuit is not just who wins, but what is their reasoning," Davidson says. In yesterday's ruling, Walker laid out the facts of the case strongly, definitively answering questions about about gay people and gay parents. For instance, he smacked down myths that gay parents are inferior or that their children are more likely to be gay. "In a lot of prior marriage cases, appellate judges reached a conclusion by saying common sense tells us things or by saying that we don’t know the answers to certain things. Judges have said there no evidence about whether it homosexuality is immutable or not. Here we cannot say that.”
If the Supreme Court Does Take the Case:
In this last scenario, the Supreme Court agrees take the case. This could either result in taking a broad ruling from the 9th Circuit and upholding it outright—essentially amplifying the decision to make gay marriage legal in all 50 states—or shutting down the debate completely. Or the court could take a narrow ruling from the 9th Circuit and maintain it. Perhaps most likely is that the Supreme Court takes the case and expands rights for LGBT people in certain states with some gay-partnership laws on the books, while it avoids issuing a lightning-rod decision that mandates all of the states allow same-sex marriage.
“What is most likely to be upheld by the Supreme Court is a narrow ruling," Davidson says. "Even Justice Ginsburg, who is considered a liberal, she was critical of the decision of Roe v. Wade because she said that was moving too quickly. While there was intense political debate on reproductive freedom, the decision that halted anti-abortion laws in all the states led to a backlash and years of litigation chipping away at the right. So if they can move more incrementally, I think they are more willing, as a general statement, to do something that way. But obviously it would be better for lesbians and gay men if they could get marriage... and we would support that, but the tough issue is that whether the Supreme Court going to do that or would it more likely to do something more modest."
There is also a question about whether the Supreme Court would distinguish homosexuality as a "status" or "conduct"—the former being inherent to someone's identity and civil rights. Davidson says it's a non-issue since Justice Ruth Bader Ginsburg ruled in a recent case related to gay rights, "Our decisions have declined to distinguish between status and conduct in this context." Says Davidson, "Declined to distinguish means we treat them the same way." Having settled that questions could be a boon to gay-rights advocates if the case ever reaches the high court.
Regardless, any decision will be a long time coming. The 9th Circuit isn’t bound by any timeline, and Davidson says a ruling in three years may realistic. Even then, either side could appeal from the three-judge panel to an 11-member en banc hearing, remaining in the San Francisco-based court. And only after that concludes, may we finally begin the slow process of hearing the case in D.C.