An LGBT Law Expert's Take on Tuesday's Prop. 8 Decision

Expert analyses of the Ninth Circuit’s Prop. 8 ruling Tuesday have been legion throughout the day, though one from Williams Institute legal director Jennifer Pizer stood out as particularly thoughtful. The former Lambda Legal marriage project director wrote earlier today:

The decision breaks new ground because it’s the first federal appeals court to strike down a state’s exclusion of same-sex couples from marriage. But it doesn’t break new ground legally. Instead, the ruling’s close application of Justice Kennedy’s 1996 equal protection analysis (in the Romer v. Evans, Colorado Amendment 2 case) both makes it less likely that the Supreme Court will grant review, and more likely that that plaintiffs would win if the case does go up. Justice Kennedy is generally seen as the key vote, and today’s decision – looking at another state ballot measure – uses his 1996 analysis as a roadmap.

By deciding that California has no legitimate reasons for allowing same-sex couples all the same rights and obligations as different-sex couples, but withholding the equal dignity of marriage, the decision has important implications for other states doing the same. At present, there are nine of them with either a civil union law (DE, HI, IL, NJ, RI) or a broad domestic partnership law like California’s (CA, NV, OR, WA). Today’s decision doesn’t mean those laws are automatically invalid, because it focused closely on specific facts and dynamics of the Prop 8 campaign. That focus on facts unique to California is another reason the Supreme Court might decide not to hear it. And in any challenge to another state’s marriage restriction any defenders of the restriction would have a chance to try to show reasons to retain it, aiming to persuade other judges to agree with Judge Smith’s dissent rather than today’s majority opinion.

Today’s bottom line is that this decision is written about as narrowly as it could be, and offers as little reason as possible for the Supreme Court to want to grant review. Even so, given California’s size and national influence, the immense public interest in the marriage question, and the implications of the decision for other states, means there’s still plenty of reason to think the Justices may find the case irresistible.