Font Size: A A A


Gambling With Gay Marriage

David Cole
On February 7, the US Ninth Circuit Court of Appeals declared California’s Proposition 8, which bans gay marriage, unconstitutional. For many gay rights activists, however, the sounds of celebration have been decidedly muted. While time and momentum are undoubtedly on the side of recognizing gay marriage, there is still widespread hostility, with a majority of state constitutions now explicitly rejecting recognition of gay marriage. The next stop in the Proposition 8 case could well be the US Supreme Court, and there is no guarantee that the decision will be upheld there. A loss in the Supreme Court could set the gay rights movement back for decades.
gay marriage.jpg

Justin Sullivan/Getty Images

Frank Capley-Alfano and Joe Capley-Alfano celebrate the U.S. Court of Appeals ruling outside of San Francisco City Hall, February 7, 2012, San Francisco, California

For many years now, gay rights activists in the United States have set their sights on eliminating one of the most pervasive vestiges of their second class status—the fact that opposite-sex couples can marry with full recognition by the state, while same-sex couples generally cannot. California’s Proposition 8, which withdrew state recognition of same-sex marriage, was especially frustrating as it seemed to turn back the clock. A US appellate court’s ruling on February 7 that Proposition 8 is unconstitutional, then, should have been a major victory. The sounds of celebration, however, have been decidedly muted. The next stop in the case could well be the US Supreme Court, and there is no guarantee that the decision will be upheld there. A loss in the Supreme Court could set the gay rights movement back for decades.

For this very reason, gay rights organizations have stayed away from the federal court system. They have instead sought to obtain legal rights for same-sex couples state by state, going first through the legislatures and only thereafter through the courts; and even then, only in the state courts, relying on arguments based on state law that could not be reviewed by the Supreme Court. The strategy has proved quite successful. Since 2004, six states (Massachusetts, Connecticut, Iowa, Vermont, New Hampshire, and New York) and the District of Columbia have recognized same-sex marriages. On February 8, Washington’s state legislature passed a bill that will make it the seventh such state once the governor signs it. Twelve more recognize some sort of partnership status that gives same-sex couples all or most of the benefits and obligations associated with marriage.

Yet many other states have moved in the opposite direction. By June 2011, 29 states had banned gay marriage by constitutional amendment, and another twelve by state statute. (Some states, like California, have both recognized same-sex civil unions and banned same-sex marriage.) In short, we are far from reaching any national consensus on the issue. While time and momentum are undoubtedly on the side of recognizing gay marriage—young people are decidedly more receptive to gay rights than their parents and grandparents—there is still widespread hostility, with a majority of state constitutions now explicitly rejecting recognition of gay marriage.

The continued opposition to gay marriage in many states, coupled with the conservative orientation of today’s Supreme Court, led gay rights activists to avoid federal court challenges. But in 2009, David Boies and Ted Olson (who faced off against each other in Bush v. Gore), broke from that strategy. In California, where all state law arguments had been defeated by a popular referendum, the only recourse was to federal law. Accordingly, over the objections of many in the gay rights community, they filed a federal constitutional challenge to Proposition 8, the California referendum that denied marriage to same-sex couples. Because the suit pressed only federal constitutional claims, it raised the distinct possibility that it would end up in the Supreme Court.

Boies and Olson won in the district court, and have now prevailed again in the US Court of Appeals for the Ninth Circuit. But victories in California’s Ninth Circuit are often short-lived; it is the most frequently overturned circuit court in the nation.

The Ninth Circuit judges did everything they could to evade Supreme Court review of their ruling. The decision is written narrowly, and is limited to the unique situation in California, where all couples had the right to marry (for 143 days anyway, as a result of the 2008 California Supreme Court decision), and the state then selectively took away that right from same-sex couples by constitutional referendum. The court goes to great lengths to stress this peculiarity, presumably to reduce the direct consequences of the decision for states that have not yet granted marriage status to same-sex couples, and thereby to render the decision of limited national significance, and less worthy of Supreme Court review.

Still, the tactic is unlikely to succeed. Proposition 8’s proponents can now ask the full Ninth Circuit court to “rehear” the case, or can seek Supreme Court review. If they pursue the latter course, the Supreme Court is almost certain to grant review, for several reasons. First, the court of appeals’ limiting principle seems a little disingenuous; surely the validity of treating same-sex and opposite-sex couples differently with respect to the right to marry should not turn on the order in which the difference arose, much less on the happenstance of a short-lived court decision overturned by the people.

Second, the court’s reasoning—namely, that there is no conceivable motive, other than mere disapproval of a class of people, to deny same-sex couples the label “marriage” when they are granted all other rights associated with marriage—would seem to apply to all states that allow same-sex couples to form civil unions, but not to marry. (New Jersey, Oregon, Nevada, Illinois, Rhode Island, Hawaii, Delaware, and Washington all fall into that category). Third, the conservatives on the Court may well understand that time and momentum are on the challengers’ side, and thus may be inclined to jump at the opportunity to stop this movement in its tracks. Finally, the Supreme Court rarely denies review of a federal court decision striking down a state law on constitutional grounds, much less a state constitutional provision. A betting person could therefore safely wager that this case will be on the Supreme Court’s docket next year.


So how is the Court likely to rule? Other than the fact that it was brought prematurely, the California case presents the best possible basis for such a challenge. That’s because California extends to same-sex couples all the rights and obligations of marriage except the label “marriage.” Once the state has gone that far, it is more difficult to justify differential treatment than if the state refused to recognize same-sex partnerships altogether. When there are no tangible legal differences between same-sex couples’ “domestic partnerships” and opposite-sex couples’ “marriages,” the only possible rationale for denying the label must be to maintain a symbolic distinction, which in turn is hard to justify for any other purpose than to convey the state’s disapproval of committed relationships between same-sex couples. The Supreme Court has said that mere disapproval of a class of people is not sufficient to justify differential treatment.

Indeed, California itself is not even willing to defend the law; that task has been left to the sponsors of Proposition 8. They maintain that Proposition 8 encourages responsible procreation and child-rearing by opposite-sex couples, proceeds with caution in making changes to longstanding social practices, furthers religious freedom, and helps to prevent children from being taught about same-sex marriage in schools. But given that the state has already granted to same-sex couples all the legal incidents and obligations of marriage other than the name, it isn’t clear how denying them the label “marriage” will further any of these aims. Thus, as the Ninth Circuit ruled, the law fails even the minimal demands of “mere rationality” review that applies to laws that do not discriminate against a protected class.

There is a very strong logical case, in other words, for striking down California’s ban. But as Justice Oliver Wendell Holmes has reminded us, “the life of the law has not been logic; it has been experience.” Justices Antonin Scalia and Clarence Thomas are on record as believing that moral disapproval is a perfectly fine reason to make homosexual sodomy a crime, so they won’t have any problem denying same-sex couples the right to marry. Justices Samuel Alito and John Roberts are unlikely to issue a ruling that calls into question, even indirectly, the laws of the large majority of the states on such a hot-button issue. Justices Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan should be sympathetic to the challengers. So that leaves everything in Justice Kennedy’s hands.

Justice Kennedy wrote the Court’s historic decisions in Romer v. Evans and Lawrence v. Texas, both of which invalidated laws targeted at gays and lesbians. In Romer, the Court struck down a Colorado state constitutional referendum denying gays and lesbians the protection of all state anti-discrimination laws, a sweeping prohibition that Justice Kennedy concluded could only be explained by animus against gays and lesbians as a class. In Lawrence v. Texas, the Court invalidated a Texas statute making homosexual sodomy a crime; Justice Kennedy concluded that the law impermissibly impinged on the right of two adults to make critical decisions about their consensual intimate relations.

Both rationales could easily be extended to the California case. But there are significant differences, especially once one moves beyond logic to experience. The Colorado law was a unique prohibition, so invalidating it had little consequence beyond Colorado. And most sodomy statutes had been repealed or fallen into desuetude by the time the Court took up Lawrence v. Texas, so it too had little impact on state legal practices. That’s much less likely to be true with respect to Proposition 8; the Ninth Circuit’s strained efforts to portray its decision as limited to California unwittingly underscore how much is actually at stake. At the end of the day, the Ninth Circuit’s rationale could form the basis for invalidating marriage bans in all states recognizing civil unions.

Moreover, even a victory at the Supreme Court is not always a victory. Some scholars maintain that the Supreme Court’s decision in Roe v. Wade, for example, did more to mobilize anti-abortion forces than to cement progress for women, and that the outraged reaction to the Court’s decision declaring the death penalty unconstitutional in Furman v. Georgia in 1972 is a central reason why the United States still has the death penalty, while its European counterparts have long abolished it through legislation. Getting out ahead of the curve can produce backlash that does more harm than good.


Had the federal case for gay marriage been postponed, so that by the time it reached the Supreme Court a more significant portion of state governments had recognized the practice without the sky falling, the likelihood of success at the federal level would be much greater. But we are here now, on the precipice. In the long run, I am confident that justice will be done, and our grandchildren will look back on same-sex marriage bans with the same incredulity with which we regard bans on interracial marriage. But there is a real danger that this case may make the long run even longer.

Subscribe and save 50%!

Get immediate access to the current issue and over 25,000 articles from the archives, plus the NYR App.

Already a subscriber? Sign in

© 1963-2024 NYREV, Inc. All rights reserved.