William Eskridge, Professor of Law at Yale, argues that the Supreme Court should move very slowly on the Prop8 case, with very narrow rulings. He suggests they be guided by the Romer decision that overturned Colorado's Amendment 2.
How ought the U.S. Supreme Court handle the appeal in Perry v. Schwarzenegger once the case is ripe for appeal? The Court ought to avoid any broad pronouncements on the merits of plaintiffs’ claim that denying marriage equality to lesbian and gay couples violates the Fourteenth Amendment....
In 1956, political scientist Robert Dahl warned that pluralistic democracy cannot easily handle issues that both intensely and evenly divide the polity. Indeed, such issues threaten the viability of our system, because they polarize contending groups and engender politics-exiting bitterness among group members who are defeated.....
... A narrower ruling on the merits would rest upon Romer v. Evans (1996), where the Court invalidated Colorado’s Amendment 2, an anti-gay state constitutional initiative, because it violated core equal protection precepts.
While there is legitimate debate about how broadly to read the Court’s opinion, Romer applies (at the very least) to cases whose facts are close to the Romer facts: (1) novel, ad hoc legal barriers erected by voter initiatives denying fundamental public rights to lesbians and gay men (2) cannot stand if tainted by a bare desire to lower the status of this minority (whether for reasons of anti-gay animus or religious morality) (3) rather than a rational connection to a neutral public interest.
Proposition 8 fits the facts of Romer snugly. No state but California has recognized lesbian and gay couples’ right to civil marriage as “fundamental,” and then revoked that fundamental right through a popular initiative. The supporters of Proposition 8 openly defended their rights take-back as a pure status denigration. Thus, their ballot materials explained that the rights take-back was needed in order to (1) restore the discriminating feature of traditional marriage, (2) discipline “activist” judges who recognized fundamental rights for a disapproved minority, and (3) assure that schoolchildren would not be taught that gay marriage was entitled to the same civil respect accorded traditional marriage.
Finally, the briefs filed by the Proposition 8 proponents have been strikingly unable to tie the exclusion of same-sex couples to any neutral state interest. Their main argument, that discrimination against gays protects marriage against decline, is open scapegoating, namely, blaming a minority for problems created by the majority. Marriage has been in decline in many respects, but not because of lesbian and gay unions, which are more likely reinvigorate than kill that institution. ...
.... Amendment 2 denied gay people some legal rights, while Proposition 8 is completely symbolic. In one respect, the latter is a more serious equal protection concern: the proponents of Proposition 8 spent millions of dollars simply to deny lesbian and gay couples the symbolic equality associated with full (civil) marriage recognition.... Carving out a class of citizens from a core civil or political status is unprecedented in our constitutional system; it is highly suspect, and perhaps a per se constitutional violation, under Romer.
.....the record in Perry is saturated with direct evidence of animus (anti-gay prejudice, stereotypes, and sectarian disapproval).
Like the Warren Court did in the different-race marriage cases, the Roberts Court should not be in a hurry to reach the constitutional merits of the same-sex marriage cases. If the Justices reach the merits, they should craft an opinion that decides the California appeal but goes no further. A Romer-based approach is the best the Court can do under those circumstances—and then watch as the state-by-state debate eventually runs out and a rough consensus emerges among younger Americans, who I believe will ultimately find same-sex marriage a constitutional no-brainer.