I may be the only person in the world who is more interested in the 9th Circuit’s decision in Perry v. Brown, (the much publicized suit over the constitutionality of California’s Proposition 8) for its lessons in advocacy than for its political issues. I see this case as one of the true tests of the limits of legal skill. From the get-go, the question has been whether two of the brightest legal minds out there — David Boies, whose famous cases include representing former VP Al Gore in Bush v. Gore and Ted Olson, who represented former President Bush in that case, and served as Solicitor General after it — could come up with a way to convince the courts (most importantly, a majority of the Supreme Court of the United States) to find a Constitutionally protected right to same-sex marriage.
But after digesting the 9th Circuit’s decision, it is also clear that there’s now something else at work: the fact that judges don’t like handing down decisions that are likely to be reversed. And that apparently includes 9th Circuit Judge Stephen Reinhardt, despite his having told the LA Times in July that he wasn’t bothered that the Supreme Court had reversed so many 9th Circuit decisions (including several he authored) of late.
So once Boies, Olson, and their allies convinced the district court and 9th Circuit to go along with their arguments (which was far from assured at the outset) the authors of the two opinions, who are pretty brainy themselves, added their own slants with the intent of avoiding reversal. It’s interesting to see the way in which the district court’s decision (authored by Judge Walker) and the 9th Circuit’s opinion (by Judge Reinhardt) reach the same result through very different means, with each approach apparently intended to minimize the chances that the Supreme Court will reverse.
Judge Walker’s decision made a sweeping proclamation that, in effect, there is a constitutional right to same-sex marriage. Perhaps recognizing that this holding would have a hard time surviving appellate scrutiny given the current state of the law, he grounded his decision on a broad base of factual findings about the purpose and effect of Proposition 8, presumably hoping for the deference appellate courts grant to a district court’s factual findings.
But the 9th Circuit was convinced by the proponents of Prop 8 (whose counsel is no slouch either) that most of Judge Walker’s factual findings were “legislative facts,” i.e. generalized facts, rather than the type of case-specific facts to which appellate courts might defer, and didn’t defer to Judge Walker’s fact-finding.
And the current Supreme Court seems unlikely to find a constitutional right to same-sex marriage. That’s probably why Judge Reinhardt reframed the issues such that it affirmed Judge Walker’s finding that Proposition 8 is unenforceable, but avoided making a broadly applicable pronouncement of a constitutional right to same-sex marriage.
The 9th Circuit’s decision reinforces the importance of how you frame the question to be answered, particularly when it comes to issues of constitutional interpretation. [I touched on this topic in discussing the arguments for and against the individual mandate in the PPACA, where the challengers frame the “commerce” it regulates as the health insurance market and argue that the individual mandate improperly requires citizens to participate in a market they otherwise would not rather than regulating the activities of persons already participating in commerce; while the Justice Department argues that the “commerce” at issue is healthcare financing, and that all (or almost all) citizens participate in the healthcare market, so the individual mandate regulates existing commerce rather than requiring citizens to participate in a market where they otherwise would not. This issue is discussed more in-depth at Volokh Conspiracy by Case Western Law Professor Jonathan Adler.]
Judge Reinhardt reframed the question in Perry from whether it is unconstitutional to prohibit same-sex marriage to the much narrower issue of whether it is unconstitutional for a state in which same-sex couples (1) have the right to marry; and (2) have all of the same rights as other couples with regard to adoption and other family-related matters, to revoke the right of same-sex couples only to marry. The apparent strategy in that approach was that it not only avoided a broad pronouncement of a newly recognized constitutional right, but also essentially limited the reach of the holding to California only.
A time-honored way to avoid Supreme Court review is to decide the case on pure state law grounds. But that being impossible in Perry, the 9th Circuit did the next best thing by deciding it on federal grounds that apply only to one state. The other apparent advantage is that by reframing the issue as being about revoking existing rights that same-sex couples had shared with the general population, it has parallels to the Supreme Court’s relatively recent decision in Romer v. Evans.
Will the Supreme Court take up the case despite the more narrow focus of the holding on California? I’d be shocked if it didn’t. A bigger question will be whether the Supreme Court will address it through the narrower frame of the 9th Circuit’s opinion. And if it does, the question will become whether the Court will think the facts are similar enough to Romer to apply stare decisis. It’s noteworthy that Judge Smith, in his dissent from the 9th Circuit’s decision, accepted the framework adopted by the majority, but concluded that Romer was distinguishable and that Proposition 8 passed constitutional muster.
Judge Reinhardt’s opinion, however, may not be the 9th Circuit’s last word on Perry. According to Lyle Denniston at SCOTUSBLOG, the proponents of Proposition 8 plan to ask the 9th Circuit to rehear the case en banc before petitioning for certiorari. They may be hoping the 9th Circuit will itself reframe the issues in the case before it even reaches the Supreme Court.