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Tuesday, February 07, 2012

The Savvy of Perry

I had the chance to skim quickly the Perry decision earlier today. I skipped the boring stuff, yes. And, not having followed the litigation carefully, I was surprised to discover the argument that swayed Reinhardt and Hawkins. Indeed, I don't remember anyone saying: it's not the right to gay marriage that the 9th has to decide, but rather the wrong of withdrawing the right to gay marriage. Thus Roemer controls.

Genius. Kennedy will affirm this "narrower" holding, thereby creating more time for older homophobes (who make up only part of the constituency that opposes gay marriage) to die off and thus allow the trend of gay marriage rights at the state level to percolate and evolve. Satisfies libertarians somewhat and federalists somewhat more for letting states decide these contested issues.

So, who deserves credit for this strategy? From the Perry decision in the Ninth, it seems like the argument was introduced on appeal by the city attorneys of San Francisco, but I wasn't sure. Anyone know if this argument was ventilated beforehand or in the amicus briefs? In any event, it's the kind of foxiness good lawyers should be recognized for, even if it's likely to stick in the craw of uber-lawyers Olson and Boies. They, after all, tried to address the larger issue at trial and Judge Walker's "adjudicative" facts determinations will be somewhat for naught. The Ninth Circuit's ruling, for now, is a Roe-avoidance mechanism.

Posted by Administrators on February 7, 2012 at 11:09 PM in Constitutional thoughts, Culture | Permalink


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To the original question - the argument adopted by the court was offered, and argued by, Therese Stewart of the San Francisco City Attorney's office. For a little history and analysis of how it fit (or didn't) with Boies & Olson's strategy, see here:

Posted by: Ellie Margolis | Feb 8, 2012 12:25:15 PM

"CTA9 seems to be saying that it violates the nation's constitution for the people of a state to correct what they regard as a mistaken interpretation, by that state's court, of that state's constitution"

Why? It doesn't after all actually say that. It says that when it is done in such a way that a particular group is targeted so that its rights are infringed w/o a valid reason that it violates the nation's constitution. If CA passed an amendment clarifying any number of things, no probem.

As to why it is not unconstitutional to deny SSM overall, he didn't have to address the question. I think it is protected and he probably does too but Romer et. al. makes it easier to defend this result.

Posted by: Joe | Feb 8, 2012 11:18:50 AM

Great comments all. Since I have to teach imminently, let me just say that I wasn't conflating unreasonably and illiberally, and that sometimes illiberal behavior can still be reasonable behavior. Here, I think opposition to gay marriage is both unreasonable (all things considered) and illiberal. To be clear, I'm not stating that as my argument; it's nothing more than a frothy asseveration of my opinion, which I won't bother defending now. It's a conclusion that requires much more scaffolding.

That aside, for those interested in the genealogy of the argument, one might think Pam Karlan's recent piece in Calif LR warrants some credit. See p.702: http://www.californialawreview.org/assets/pdfs/98-3/Karlan.FINAL.pdf

There, she's talking about a state withdrawing from the institution of marriage altogether, as opposed to the Perry court's focus on the rescission of rights for same sex marriage. If she's right about the broader claim under Roemer, then the selective withdrawal of marriage rights seems even more constitutionally dubious. That said, I confess I'm not convinced by her broader suggestion: ie, that a state getting out of the marriage business altogether would create an inference that its decision arose out of illegitimate animus toward some group affected by it. It would be hard to derive that inference from a multi-member body, some of whom are simply motivated by a desire for state neutrality on these contested issues.)

Posted by: Dan Markel | Feb 8, 2012 10:03:49 AM

Strike Massachusetts in my previous post. Obviously I meant California. I'm not fully caffeinated yet.

Posted by: Hillel Levin | Feb 8, 2012 9:57:32 AM

I'm surprised everyone is so convinced that the supreme court will even take cert. My guess is that it won't. The decision is extremely narrow, and it seems to apply (directly, at least) only to Massachusetts. Given that the Court has many politically charged cases coming its way already, as well as the DOMA cases, I would be (mildly) surprised if the Court even bothers with this one.

Posted by: Hillel Levin | Feb 8, 2012 9:56:32 AM

Dan, for what it's worth, I agree with Paul that "illiberal" does not mean "unreasonable." I also think that, as a general matter, the term "unreasonable" is, regrettably, too often used as a way to win-by-declaring-ended arguments about hard questions that are (reasonably) contested among intelligent and decent people.

With respect to the CTA9's decision: I understand the argument that a state's (any state's) refusal to include same-sex unions in the legal "marriage" category violates the Equal Protection Clause, but CTA9 seems to be saying that it violates the nation's constitution for the people of a state to correct what they regard as a mistaken interpretation, by that state's court, of that state's constitution. I don't think that is right, as a general matter, i.e., that the U.S. Constitution locks people into state-courts' interpretations of state constitutions. So, if it is unconstitutional to undo the state-court decision *here*, because the popular-majority's *reasons* for wanting to undo (rather than just accept) what they regard as a mistaken interpretation are bigoted, unreasaonable, animus-driven, etc., then why isn't it unconstitutional, full-stop, to refuse to enact same-sex-marriage laws? (I assume that Judge Reinhardt thinks it *is*, and so then the question is whether we think he's being commendably, or inappropriately, savvy in protecting the judgment, if not the reasoning, below. And, I guess the answer to this question depends, at least in part, on how convincing the narrower grounds are.)

Posted by: Rick Garnett | Feb 8, 2012 9:51:50 AM

Dan, I appreciate both your clarification and your willingness to emphasize your strongly held views. I expect I share your views on gay marriage. Your clarification is valuable because, as you concede, surely not everyone who is opposed to gay marriage is hostile toward gays and lesbians, although clearly their position will deprive gays and lesbians of what they (and I) think is just treatment. But although I appreciate your stating the operative premise for your views, namely that opponents of gay marriage are "unreasonably and illiberally" opposed to gay marriage, I really think that phrase needs to be modified. Surely you mean that, from your perspective, they are "unreasonably BECAUSE illiberally" opposed to gay marriage. Or do you think that all illiberal views are unreasonable simply because they are illiberal? If so, I would have to part ways with you there. My views are liberal (in the sense in which you use the word), even staunchly liberal, but I don't think liberalism always implies reasonableness or vice versa. Warm regards, Paul

Posted by: Paul Horwitz | Feb 8, 2012 8:38:26 AM

Yeah, I would give 30/70 odds to Kennedy voting to affirm on this basis. I also think there's a decent chance a majority of the Court will punt it away on standing grounds. It's a little silly to think that just because Kennedy wrote Romer he'll favor any tenuous application of Romer.

Posted by: Asher | Feb 8, 2012 2:20:32 AM

You might be right anon ... I think the DOMA cases out of MA is more up his speed. Has a federalism flavor to allow MA to have federal benefits and it allows some more sexual orientation baby steps.

Posted by: Joe | Feb 8, 2012 1:00:57 AM

I'll put it another way to emphasize my real point: AMK wants no part of this, and reversal without extinguishing the constitutional claim is possible. So I bet he'll do it.

Posted by: anon | Feb 8, 2012 12:48:58 AM

I'm sorry, CITING Bowers. Kennedy is fine with a "more searching" test if you are a bit coy about it. See Lawrence itself, which confuses lower courts not knowing exactly what level of scrutiny it warrants.

Posted by: Joe | Feb 8, 2012 12:42:47 AM

Romer avoided even quoting Bowers; avoidance isn't unknown to Kennedy. What is happening here is what O'Connor said in her concurrence in Lawrence v. Texas, which was cited on another point in CLS v. Martinez, namely, when certain disfavored groups are involved, rational basis gets a bit more teeth. Justice Thurgood Marshall knew that for years.

Prof. Kerr thinks Kennedy is going to be upset or something that it was suggested his beloved state did something prejudiced. He cited prejudice in Lawrence. Did his beloved state not have anti-homosexual laws over the years or what? Kennedy supported gay rights back even before Bowers & I doubt he didn't realize there was some prejudice there either. Why Kennedy is supposed to be naive is unclear to me.

Posted by: Joe | Feb 8, 2012 12:38:44 AM

I disagree. I don't think AMK will be excited about this more searching than usual rational basis test. Also, the Court loves avoidance, but the best avoidance is reversal with a remand to consider the "real" issue, which puts off striking down or upholding the law for another few years. By then Californians may moot the issue by repealing prop 8, perhaps in response to the Court's opinion.

Posted by: anon | Feb 8, 2012 12:27:13 AM

Oops, one of my beloved conservative friends has chastised me privately for using the word homophobes in the post on the grounds that not only homophobes would hesitate about refashioning longstanding institutions.

If that's how the post sounds, my apologies. I can well imagine that people without subjectively motivated animus to gays might still oppose gay marriage on this quasi-Burkean view. I was actually using homophobes in that sentence merely as a guess as to what the intended benefit of the narrower ruling would augur.

Still, I don't want to back away from my admittedly more aggressive beliefs about this issue. Indeed, that same friend might also have suggested that I'm giving rah-rahs to this opinion out of former clerk loyalty. (I clerked for MDH a zillion years ago. I should have disclosed that but I figured most of y'all knew that already from previous posts.) I am glad that the result came out the way it did, but, I would have likely gone whole hog, and affirmed the broader right to gay marriage determined by the district court. That view, however, relies on my cocksure view that opponents of gay marriage are *unreasonably and illiberally* opposed to gay marriage. It chagrins me to say that so boldly b/c of the affection I have for some folks who are opposed to gay marriage, or at least, hesitant to refashion longstanding institutions (perhaps especially through judicial fiat). But I do think that. And I'll neither apologize for that view here, nor defend it much either. Off to bed.

Oh, and David, the reason I thought the argument emanated from outside Reinhardt's giant brain was because the opinion suggested as such at some point!

Posted by: Dan Markel | Feb 8, 2012 12:13:39 AM

Kennedy wrote Romer; Romer threw out an anti-gay referendum on rational-basis grounds. I think it is good strategy because it doesn't in terms implicate DOMA.

Posted by: Don Dripps | Feb 7, 2012 11:52:19 PM

My understanding is that this was part of Olson & Boies strategy—I remember attending a panel a few years back (an ACS event in NYC, probably about the pending NY marriage statute) in which the district court litigation was discussed, and the "focus on Romer" strategy was definitely raised. Their focus might have shifted a bit since then to look at the bigger picture, but a limited ruling on the basis of Romer is definitely more likely to survive than a broader ruling that would apply outside of the narrow facts of Prop 8.

Posted by: Charles Paul Hoffman | Feb 7, 2012 11:50:50 PM

Oh, and yes, I believe the merits briefs made the basic argument that Reinhardt adopts. See, for example, here:

Posted by: Orin Kerr | Feb 7, 2012 11:48:44 PM

Dan, David, I'm curious, can you be specific about what is genius here? Perhaps you have some insight into the views of Justice Kennedy that I lack, but I'm not at all confident that Justice Kennedy will conclude that the people of his beloved home state of California were acting out of animus in passing Prop 8.

Posted by: Orin Kerr | Feb 7, 2012 11:33:35 PM

Agreed. Genius. But why assume the killer argument came from the attorneys? I'm biased, but speaking as a former Reinhardt clerk, I wouldn't assume that at all. The man doesn't have a reputation for being smart for nothing.

Posted by: David Law | Feb 7, 2012 11:17:17 PM

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