The upcoming SCOTUS decision

From Scotusblog:

Three lessons emerge from this brief history of same-sex marriage litigation in the United States. First, the evolution of constitutional law has more to do with changing social and political mores than with traditional sources of constitutional law such as text, original understanding, and precedent. Same-sex marriage has advanced from an absurd constitutional argument to a compelling one – at least in the mind of five Justices – because public attitudes regarding sexual orientation have been transformed over the last half-century.

To a greater extent than most people probably are aware, other landmark Court rulings on issues of social reform were similarly inconceivable only a decade or two before they happened. ... 

Second, Court decisions on issues of social reform that advance far beyond public opinion often generate potent political backlashes. Brown, Roe v. Wade, and Furman v. Georgia all had such an effect. ... 

Third, the factors that predict political backlash – which include public opinion on the underlying issue, the relative intensity of preference on the two sides of the issue, and the ease with which a particular Court ruling can be circumvented or defied – suggest that a Supreme Court ruling in favor of a constitutional right to same-sex marriage in 2015 will produce only minimal political backlash.

Polls show that fifty-five to sixty percent of Americans support same-sex marriage today—perhaps triple the percentage of twenty-five years ago. Moreover, as recently as ten years ago, opponents of same-sex marriage had much more intense feelings on the issue than did supporters. According to polls taken then, only six percent of same-sex-marriage supporters said they would be unwilling to support a political candidate with whom they disagreed on the issue, while thirty-four percent of opponents said they were willing to make same-sex marriage a voting issue. Among evangelical Christians, that number rose to fifty-five percent. That large disparity in intensity of preference between the two sides of the same-sex marriage issue no longer exists today.

A quiet earthquake for marriage equality

When from out of the blue
And without any guide,
You know what your decision is....
Which is not to decide
          "On the Steps of the Palace", Stephen Sondheim

The Supreme Court today denied certiori to seven different cases involving marriage equality.  By denying cert, the court essentially says that the decisions from the lower courts stand.  This may be because those lower courts all agreed with each other, and have been falling all over themselves to find for equality.  Without a disagreement between the lower courts, there's not a conflict that requires the Supreme Court to solve.  This suits the Court, which prefers to let trends get hammered out by the states before taking a step.  

So this decision not to decide brings marriage to Virginia, Indiana, Wisconsin, Oklahoma, and Utah.

I know, Utah.  Right?  (After what they did to us in CA it's hard not to enjoy this....)

But wait, there's more! 

The decisions came from the 4th, 7th, and 10th circuit courts of appeal, which means that other states that still have bans in those circuits are also affected, giving a total of 11.  

• 4th: Virginia , West Virginia, North Carolina, and South Carolina.
• 7th:Wisconsin, Indiana 
• 10th: Utah, Oklahoma, Wyoming, Colorado, and Kansas as well.

THinkProgress gives us the map.  Potentially 30 states will have equality, and 60% of the population.

It is possible (or even likely) that one of the remaining circuits will uphold a marriage ban, as those circuits tend to have more conservative judges.  And that may be the case that the Supreme Court eventually takes.

As always, the most detailed information can be found at Scotusblog.

It's up to the supremes

From Scotusblog (Lyle Denniston)

With lawyers moving very rapidly, the number of appeals to the Supreme Court on same-sex marriage rose on Tuesday to seven, as state officials in Indiana and Wisconsin separately challenged a federal appeals court ruling against their bans, and lawyers for the couples planned to file immediate replies. The new cases landed at the Court five days after that decision; the states had the option of taking ninety days to file.
... 

The Court has the option of taking on either or both issues, and it also has the option of putting off any consideration for the time being, despite the heavy pressure from virtually everyone involved in the cases, who contend that the Court should not wait any longer to decide. None of the cases is a mandatory appeal. It would be highly unusual, however, for the Court to pass up all of the cases, when everyone is championing review now. 

If the Court opts to take on the controversy anytime up to mid-January, a final ruling could be expected before the new Term is completed late next June.

And guess what?  The case may well rest not on constitutional law, not on fairness, but on religious freedom.  Mark Silk at Religion News Service on an amicus brief filed for Utah:

The religious organizations make clear in their amicus brief that, besides addressing all relevant Fourteenth Amendment issues, the Utah case uniquely addresses the burden placed on religious liberty by SSM. Quoting from a 2012 letter from a coalition of anti-SSM religious leaders, they write:

Judicially redefining marriage powerfully conflicts with religious liberty because, among other reasons, such a dramatic change in the law inevitably will lead to “forcing or pressuring both individuals and religious organizations – throughout their operations, well beyond religious ceremonies – to treat same-sex sexual conduct as the moral equivalent of marital sexual conduct.”… 

Utah’s petition provides an opportunity to address whether avoiding religious conflicts and church-state entanglements is a sufficiently weighty reason, alone or combined with other interests, to warrant allowing States to retain the age-old definition of marriage. 

If the court did find such avoidance sufficiently weighty, I’ve no doubt that the next legal step would be to ask that all states be forbidden to permit SSM on religious liberty grounds. But the real significance of the brief, it seems to me, is that it represents an acknowledgment that SSM is becoming the law of the land, and that the battle has now moved to the securing of legal exemptions for religious objectors.

So, the logic here is that anti-gay archbishop Salvatore Cordileone's religions freedom demands that the state deny me my civil rights (not to mention any non-Catholic church's religious freedom to marry me).  The sad thing is, after Hobby Lobby, it's just what might appeal to the 5 Catholics on the bench in DC.

Analysis of "the Streak"

Scotusblog's estimable Lyle Denniston takes on the concept of a winning streak in marriage equality cases:

What the occasional breaks in the “streak” illustrate, though, is that the outcome is not necessarily predictable as other courts take on the question, and an ultimate Supreme Court decision in favor of same-sex marriage is hardly inevitable. ....

The “streak” also has created a lower-court record that, even if it does not produce the same result each time, will surely impress the Supreme Court when it finally allows itself to be drawn into the fray. Some historians have said that they know of no instance when the Court has bucked a trend such as this one has become. 

But the very nature of that trend can also be an argument against the Supreme Court choosing to get involved itself. If the only breaks in the “streak” have been a handful of rulings by divorce-court judges, none of whom so far has gone deeply into the issue before ruling, the Court could conclude that the issue is working itself out sufficiently in lower courts..... 

But that may not happen.

A number of observers who listened to hearings held last week in the U.S. Court of Appeals for the Sixth Circuit came away with a clear impression that a majority of that three-judge panel might well uphold one or more of the state bans in effect in the four states involved in that hearing. 

That kind of a break in the current “streak” would certainly demonstrate that there is a real division of opinion on the question, one that it would take a Supreme Court decision to resolve.

And there are no guarantees from the Supremes.  Ever.

Update: will they decide not to decide?

Veteran SCOTUS watcher and SCOTUSblog writer Tom Goldstein think they will decided not to decide:

The bottom line, in my opinion, is that the Court probably will not have the five votes necessary to get to any result at all, and almost certainly will not have five votes to decide the merits of whether Proposition 8 is constitutional.... 

The Justices seem divided on the constitutionality of Proposition 8 on ideological lines, four to four – i.e., all the members other than Justice Kennedy. For the more liberal members of the Court, there was no clarity on how broadly they would rule.
But Justice Kennedy seemed very unlikely to provide either side with the fifth vote needed to prevail. He was deeply concerned with the wisdom of acting now...So his suggestion was that the case should be dismissed. 

If those features of the oral argument hold up – and I think they will – then the Court’s ruling will take one of two forms. First, a majority (the Chief Justice plus the liberal members of the Court) could decide that the petitioners lack standing. That would vacate the Ninth Circuit’s decision but leave in place the district court decision invalidating Proposition 8. ... 

Second, the Court may dismiss the case because of an inability to reach a majority. Justice Kennedy takes that view, and Justice Sotomayor indicated that she might join him. Others on the left may agree. That ruling would leave in place the Ninth Circuit’s decision. 

The upshot of either scenario is a modest step forward for gay rights advocates, but not a dramatic one. The Court would stay its hand for some time for society to develop its views further. But combined with a potentially significant ruling in the DOMA case being argued tomorrow, the Term will likely nonetheless end up as very significant to gay rights.

Arguments TODAY in front of Supreme Court

Oral arguments on both the Prop8 and DOMA cases will be held today in the Supreme Court. There will also be demonstrations pro and anti. Follow all the action on Scotusblog.

Obama Administration files brief against Prop8

As we all hoped, the Obama Administration/DoJ has filed an amicus brief calling DOMA unconstitutional.  They do this in the context that separate is not equal, and say that offering the benefits of marriage (civil unions) without the name is not right.  If the Court went with this, it would affect not just CA but also 7 other states.

Fron the estimable Scotusblog:

In essence, the position of the federal government would simultaneously give some support to marriage equality while showing some respect for the rights of states to regulate that institution. What the brief endorsed is what has been called the “eight-state solution” — that is, if a state already recognizes for same-sex couples all the privileges and benefits that married couples have (as in the eight states that do so through “civil unions”) those states must go the final step and allow those couples to get married. The argument is that it violates the Constitution’s guarantee of legal equality when both same-sex and opposite-sex couples are entitled to the same marital benefits, but only the opposite-sex couples can get married. 

And

The brief recommended that the Court, for the first time, apply a tough constitutional standard that courts are to use in judging laws that treat gays and lesbians less favorably. That standard goes by the technical name “heightened scrutiny.” It means that such a law must serve an important government interest, and be effective in doing so. 

Applying that test to California and the other states that now withhold marriage itself from only one group of couples when all couples who share a committed relationship are entitled to the other benefits of marriage, the administration argued that this amounts to a form of discrimination based on sexual orientation and thus cannot stand.

The brief is here.  And just so you can enjoy it, this is the concluding paragraph.  (I've stripped the citations):

California’s extension of all of the substantive rights  and responsibilities of marriage to gay and lesbian domestic partners particularly undermines the justifications for Proposition 8. It indicates that Proposition 8’s  withholding of the designation of marriage is not based  on an interest in promoting responsible procreation and  child-rearing—petitioners’ central claimed justification  for the initiative—but instead on impermissible prejudice. As the court of appeals observed,  that is not necessarily to say “that Proposition 8 is the  result of ill will on the part of the voters of California.”  ‘‘Prejudice, we are beginning to understand, rises not  from malice or hostile animus alone. It may result as  well from insensitivity caused by simple want of careful,  rational reflection or from some instinctive mechanism  to guard against people who appear to be different in  some respects from ourselves.”   Prejudice may not, however, be the basis  for differential treatment under the law.

Prop 8 case: what if they don't find standing?

One of the arguments the Supreme Court will hear in the Prop8 case is whether or not the proponents of Prop8, who appealed their case to the 9th Circuit Court of Appeals, had legal "standing" to do so, since the State of California declined. Scotusblog discusses the possible outcomes.

If the Court were to hold that the petitioners in Hollingsworth v. Perry — the Proposition 8 initiative sponsors — do not have Article III standing to appeal, what then? What would become of the judgments below, and of Proposition 8 more broadly?

The Supreme Court presumably would reverse and vacate the judgment of the U.S. Court of Appeals for the Ninth Circuit, since the Proposition 8 proponents were also the only parties to appeal to that court from the district court judgment. If that were to happen, the Ninth Circuit’s opinion would no longer have precedential effect that would govern future cases challenging California’s (or any other state’s) refusal to recognize same-sex marriages. ....

But what about Judge Walker’s judgment and injunction in the district court in Perry? What would become of that?

Most likely, nothing — it would stand. In the district court, the named defendant state and local officials did appear, and there was complete Article III adversity between them and the plaintiffs. Judge Walker’s injunction was entered against the named defendants, and it altered the legal relationship between them and the plaintiffs. Therefore it should remain intact.....

...it would mean that the two couples who sued in Perry — Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo — would receive marriage licenses from the defendant Clerks of Alameda and Los Angeles Counties, respectively.

But would the injunction have any further effect, on other same-sex couples in California?

It shouldn’t — not of its own force, anyway.

WOuldn't that be amazing....all this and it wouldn't affect the rights of any other couples in CA besides the two couples who brought the case.

If this happens, there will be another ballot measure. Because ultimately that's the most reliable way to overturn this bigoted, hate-filled amendment.

Buckle your seatbelts, here we go again

The Supreme Court has announced the date for oral arguments in the gay marriage cases. From Scotusblog:

The Supreme Court on Monday released the schedule of oral arguments for the sitting that begins March 18, showing that the two cases on same-sex marriage will be heard — one on each day — on Tuesday, March 26, and Wednesday, March 27. The case on California’s “Proposition 8″ will come first, followed by the case on the constitutionality of the federal Defense of Marriage Act; each case is scheduled for one hour of argument, although the fact that each is to be heard alone will allow the argument time to be expanded, and that appears likely.

The Standing Issue on the Prop8 case

As well as hearing arguments on the Constitutionality of Prop8, the Supreme Court has asked to be briefed on the issue of "standing":  that is, whether the proponents of Prop8 have the right to appeal the decision, given the State's unwillingness to do so.

Some people think this may offer the court an "out" to avoid finding one way or the other on marriage. If the Prop8 supporters lack standing (since they can't demonstrate any actual harm to them caused by Prop8), the whole thing becomes rather messy, but remains limited to California.

From Linda Greenhouse at the NY TImes:

Standing has been an issue in the Proposition 8 case ever since the state of California decided not to appeal Federal District Judge Vaughn Walker’s 2010 ruling that the proposition was unconstitutional. The appeal to the United States Court of Appeals for the Ninth Circuit was carried on by a group of people who had worked to get the proposition adopted. The Ninth Circuit questioned whether this group had the requisite Article III standing, and asked the California Supreme Court to tell it whether under California law, a ballot measure’s proponents are regarded as properly standing in the state’s shoes if the state decides not to defend the measure. When the state court answered yes, the Ninth Circuit took the answer as sufficient and proceeded to decide the appeal, finding Proposition 8 unconstitutional. 

Whether standing under state law translates into standing for the purposes of Article III is a question that the United States Supreme Court has poked at but never resolved. Whether this is the right case in which to do so remains to be seen, but it was not particularly surprising for the court to raise the issue. In fact, in an era of direct democracy run amok, with voters being presented with extreme propositions that no rational state government would wish to embrace, a Supreme Court decision on who can carry the ball into federal court is probably overdue.

This was part of the appellate litigation for Prop8, so the existing attorneys have already briefed on this. 

Lyle Denniston at ScotusBlog tells us the court has identified an outside lawyer to argue the standing issue for the DOMA case.  The issue there is a little different than for Prop8, and I believe that it hasn't been part of the case previously, hence the outside lawyer.

More legal analysis

Two from Soctusblog, well worth reading.

Lyle Denniston considers the standing issue

But besides accepting for review the questions raised in those two petitions, going to some of the fundamental constitutional disputes over marriage laws, the Court — somewhat at the prompting of some of the parties — added questions to each case about its authority to rule. The added questions themselves are constitutional in nature: they arise under Article III, and its grant of power to the federal courts. But that is a power to decide only a “live” case or controversy, and that means there have to be two sides with the legal right to be in court before Article III can be satisfied.

Kenji Yoshino on how the Prop8 case could be "incremental"

DOMA represents an intrusion of federal law into the traditional state domain of family law. As the lower courts have pointed out through various formulations, invalidating DOMA would represent a triumph for state sovereignty as well as for gay rights. Justices on the right tend to favor state power (relative to federal power); Justices on the left tend to favor gay rights. The Justice in the middle—Justice Kennedy—has historically favored both. 

The second premise is that the Court will wish to proceed incrementally—that it will not, in one Term, strike down DOMA and flip the forty-one states that do not currently recognize same-sex marriage. Here, too, I agree. In 1967, when the Court decided Loving v. Virginia, it only had to invalidate the laws of sixteen states. In general, the Court does not like to get too far in front of national consensus. 

It might seem to follow from these two premises that the Court will split the baby between the cases. But the error lies in thinking that the Perry Court must require marriage in all fifty states or none. In fact, the Court can more narrowly invalidate Prop 8 in at least three ways.

Will Friday be the day?

The estimable Scotusblog (@scotusblog) tweets today,

#scotus is almost sure to act on same-sex marriage (#ssm) late this Friday afternoon so it can hear arguments this March.

The Supreme Court decides....

Not to decide.  At least, not today.  They may tell us on Monday.  Or Tuesday,  Possibly next Friday.  Or maybe the Monday after that.

Here's a detailed overview on what the cases are and what we might expect.

From an op/ed at ScotusBlog:

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.
...
The striking feature of these cases – not present in any others I have ever seen – is that that they would have been decided by the Justices’ predecessors one way and would be decided by the Justices’ successors another way.
….
Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.” 

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now

From a legal point of view

The estimable ScotusBlog is continuing its online symposium on same sex marriage, with legal scholars both pro and con weighing in.  Steven Sanders points out that "mini DOMAs" (the state Constitutional amendments like Prop8) are an interference in the democratic process and inevitably will demand federal court action.

For what amounts to a question of family law affecting a small minority of the population, this is not how the political process is supposed to work.  Respected conservative Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit has condemned mini-DOMAs as a “tragedy” that offend the “American constitutional tradition” and “risk trivializing” constitutions by burdening them with “essentially statutory provisions.”  As Wilkinson wrote presciently in 2006:

[I]t is legislative bodies that broker compromises among opposing beliefs and zealous factions, and it is legislatures that adapt to changing public preferences and circumstances. It is impossible to predict what views electoral majorities may entertain five, ten, twenty, or fifty years hence on same-sex relations. It is the job of legislatures, not constitutions, to reflect evolving standards and to register change from whatever direction it may arrive.

Mini-DOMAs also offend due process and federalism, I have argued, by purporting to nullify the valid same-sex marriages of couples who migrate from states where such marriages are legal.

It's an excellent article about the problem of amendments, in an era where views are changing quickly.

The right to remain married: the problem with state "mini-DOMAs"

The excellent online symposium on marriage equality at Scotusblog continues, with this excellent reflection from Steven Sanders(U Michigan) about the consequences of individual state laws forbidding same sex marriage, which he calls "mini DOMAs". My legal marriage disappears and reappears as I cross the country, like a flickering Romulan cloaking device! Worth reading the whole thing, but here is a highlight:

States recognize each other’s marriages as a voluntary matter of comity, because the law generally values stability in legal relationships and protection of justified expectations. Mini-DOMAs carve out an immense categorical exception to this rule for gays and lesbians.

As a result, property rights are potentially altered, spouses disinherited, offspring put at risk, and financial, medical, and personal plans thrown into turmoil. Should the couple choose to exit the relationship someday, they may not have access to legal divorce. And these are just the practical consequences, to say nothing of the affronts to dignity and equality. .....

This is, objectively, madness.

....First, a state that voids an existing marriage through a mini-DOMA defies any notion of procedural due process. (A state cannot terminate your parental rights over your child without a hearing and evidence, but mini-DOMA states think they can terminate your marriage with neither.) ....

Today’s state of affairs for same-sex marriages is oddly similar to what the Court confronted almost seventy years ago with divorce. In Williams v. North Carolina, it held that once a divorce is effective in one state, it must get full faith and credit in every other state. In doing so, the Court overturned an older decision that involved a man who had been validly divorced in one state but was still legally married in another – essentially the same absurd situation same-sex couples face today. T...

...[A]s we debate strategy and consequences, we should also remember that, as Justice Jackson once observed, “If there is one thing that people are entitled to expect from their lawmakers, it is rules of law that will enable individuals to tell whether they are married and, if so, to whom.”

ScotusBlog: more from the same sex marriage symposium

The excellent site Scotusblog is running an on-line symposium about legal issues surrounding Same Sex Marriage. I strongly encourage you to check it out, and read the complete essays there. I've only excerpted small parts here. I'll be excerpting others as they are published. Emphases mine. Robert Levy, chairman of the Cato Institute, writes:

I’d like to comment briefly on three jurisprudential issues that are central to the debate over same-sex marriage: religious freedom, federalism, and judicial activism… 

the right to same-sex marriage is not a constraint on religious beliefs or practices. The First Amendment ensures that churches, synagogues, and mosques are free to choose which marriages they want to recognize. Some religious institutions will sanction same-sex marriages; some will not; a third group might call them domestic partnerships. No church would be compelled to implement a policy contrary to the beliefs of its congregants; and congregants would be free to join the church whose views they found congenial. The gay marriage controversy is not about private religious practices; it’s about government’s role in issuing marriage licenses. … 

federalism does not excuse compliance with the Equal Protection Clause. ….States may not discriminate, without justification, by recognizing heterosexual but not homosexual marriages. No justification has been shown. 

How about procreation? No. Infertile persons are permitted to marry even though they cannot procreate. Child rearing? No. Studies show that children do just as well when raised by same-sex parents. Promoting traditional marriage? No. Allowing gay marriages does not deter heterosexual marriages. Conserving government resources? No. The Congressional Budget Office found that recognizing same-sex marriages would save money. We’ll have fewer children in state institutions, lower divorce rates, and less promiscuity. … 

Federalism first and foremost “protects the liberty of the individual from arbitrary power.” The object is personal freedom, including the freedom to engage in a marital relationship that visits no harm on innocent third parties. ….. 

Judicial engagement – as differentiated from judicial activism – is essential to safeguard rights that majoritarian rule has left unprotected. That’s the role that judges are supposed to fill. When Kris Perry’s rights are violated by Californians and the state’s political process hasn’t yielded an adequate remedy, the courts can and should intervene. 

Judges have a responsibility to invalidate all laws that do not conform to the Constitution. Our courts would be derelict if they endorsed unconstitutional acts merely because they were compatible with transitory expressions of public sentiment. Proposition 8, because it violates the Equal Protection Clause, cannot be allowed to stand regardless how large the majority that voted in favor.

Scotusblog: Same Sex Marriage Symposium

The excellent site Scotusblog is running an on-line symposium about legal issues surrounding Same Sex Marriage. I strongly encourage you to check it out, and read the complete essays there. I've only excerpted small parts here. I'll be excerpting others as they are published. Emphases mine.

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.