By Abby Dees
Over the last two years I've had some version of this conversation maybe two dozen times: Random Person: "Isn't it great about the Prop 8 opinion?" Me: "Fabulous!" RP: "So can people get married again in California?" Me: "Um, no." RP: "Wait…huh?" This month's 9th Circuit Court ruling on Prop 8 was no different – great news, but no one's getting married anytime soon. I don't blame people for being completely bewildered now by our apparently paper-only victories in the courts. As law-wonk-in-residence, I will accept the task of reducing the 76-page majority opinion in Perry v. Schwarzenegger down to an ADD-friendly 700 words. If you're a lawyer, turn away now, for I will be merrily hopscotching over countless legal fine points with barely a glance back.
The main idea in Perry is that you can't discriminate against a group of people just because you don't like them. The 9th Circuit Court side-stepped any decision about whether we have a fundamental right to marry, and instead up-ended Prop 8 on the basis that if the law is going to target any group of people, there has to be some conceivably plausible rationale for it. Not a good one, mind you, or even an intelligent one, but one that can pass the straight-face test. According to the Court, Prop 8 is a big, mean gigglefest, with no purpose other than to tell LGBT people they suck. This is never an acceptable reason for a law. We don't even do it to felons or street mimes.
There are certain distinctions that must meet a much higher bar, such as when the law discriminates because of race, gender or religion. Then the government must prove there's an especially compelling reason to discriminate. When Prop 8 was passed, sexual orientation discrimination too was one of the classifications accorded such "strict scrutiny" in California. Many had hoped that the 9th Circuit would extend this status into federal law, but it didn't.
In fact, the Court was relieved that it didn't have to go so far as to drag all of society into the 21st century with regard to our rights; understandably this angers people. Courts will usually take the path least disruptive to the status quo if they can, which is what happened in Perry. The Court struck down Prop 8 in the narrowest way possible. In other words, it agreed that Prop 8 can't be defended with a straight face.
To support its holding, the Court took particular note of the following: (1) Because marriage is legally indistinguishable from domestic partnership in California, Prop 8 serves only to deny LGBT people the cherished symbolic right to call themselves married; (2) The Prop 8 proponents used blatantly false advertising to convince people that we are out to get the children; and (3) just because you've always discriminated against a group doesn't mean you can now.
And there's perhaps a bigger reason the court didn't venture further than the narrow facts of Prop 8 in California, and his name is Supreme Court Justice Anthony Kennedy. Kennedy will likely be the swing vote when Perry gets to the Supreme Court (my money is that it will get there). Kennedy wrote the opinion in the 1996 case of Romer v. Evans, in which a Colorado law was struck down for – wait for it – singling out LGBT people for disfavored legal status just because. Perry is filled with comparisons to Romer and many, many juicy Kennedy quotes from that landmark case. Though Kennedy is no LGBT rights crusader, he does hate sloppy, hysterical laws that serve no decent purpose. The 9th Circuit Court appears to have handed this new case to Kennedy on a silver platter. We don't yet know if the Supreme Court will choose to hear Perry, but if it does, all eyes will be on Justice Kennedy.
So while we're farther along than ever, we still have to wait. As a courtesy to those yammering wingnuts trying to save marriage from people like me, the courts will probably keep the brakes on marriage until all the inevitable appeals are heard. There's at least another year to go – and then we'll have something to talk about.
