On Friday, the Law Journal for Social Justice will be hosting its second symposium, “Legally Gay.” Appropriately enough, as it follows a February that brought with it many significant advances for proponents of same sex marriage. In the courts, the Ninth Circuit affirmed Judge Walker’s ruling overturning California’s Proposition 8 as violating the Equal Protection Clause, and Judge White, a George W. Bush appointee sitting in the Northern District of California, ruled the Defense of Marriage Act unconstitutional. In state legislation, same sex marriage is now legal in Washington State and Maryland, and would have been in New Jersey but for the veto of Governor Christie.
It is amazing to think that it has been less than eight years since same sex marriage has been allowed in any state, and now eight states – Massachusetts, Iowa, New York, Connecticut, Vermont, New Hampshire, Washington, and Maryland – as well as the Disctrict of Columbia have legalized same sex marriage. It is especially impressive when you consider how explosive an issue same sex marriage was in 2004. Following the Massachusetts ruling in Goodridge v. Department of Public Health eleven states included ballot measures to ban same sex marriage. Not only did each of these 11 ballot measures pass, but as Kevin Drum theorized at the time some people believe the popular backlash against the Massachusetts decision helped George W. Bush win his reelection bid.
And yet here we are, less than a decade later, and while there is still resistance to same sex marriage (here in Arizona, same sex marriage is banned by our Constitution), the widespread vocal opposition to the issue that pervaded in 2004 seems a distant relic.
Perry v. Brown moves its way up the Federal System
First a little background information on Equal Protection law in this country: before a judge makes a ruling as to whether to strike down a law based on the Equal Protection clause of the Fourteenth Amendment, she must first decide what level of scrutiny that law gets. It is well established that race based discrimination gets a strict scrutiny standard (i.e. the law must address a compelling government interest and be narrowly tailored to that interest), but most cases get rational basis scrutiny (i.e. the law will be upheld if it is reasonably connected to a legitimate state interest), and occasionally, such as cases involving gender discrimination, the test is somewhere in between these standards.
This is an important distinction. A law getting rational basis review generally will survive a courtroom challenge, and a strict scrutiny review almost always means the law will fail. As the law in this country currently stands, it is uncertain whether discrimination based on sexual orientation gets mere rational basis scrutiny, or some higher level of scrutiny.
In Perry v. Brown, Judge Reinhardt avoids the question of what level of scrutiny to give discrimination based on sexual orientation by holding that Proposition 8 would not even survive a rational basis scrutiny.
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
This makes the decision a considerably narrower one – none of the reasons advanced by the proponents of Proposition 8 make any sense within the context of California, so the only reason that is left is the forbidden one of discriminating against same sex couples. This is not the same sex version of Loving v. Virginia, which struck down anti-miscegenation laws across the country. The holding here is only that in California, once same sex marriage is legalized, it cannot be banned, since unmarried same sex couples in California have many of the same rights as married same sex couples. If the law remains only this narrow, a state wishing to rescind a right to same sex marriage might be able to if they, for example, ban unmarried same sex couples from adopting children.
Although Perry v. Brown is very narrow, it is nonetheless reason to rejoice. The law does not change overnight, especially when that change occurs in the courts. Perry v. Brown avoids the question of whether same sex couples have the right to marry, but because of that, there is a greater likelihood that it will be upheld by the Supreme Court. Justice Kennedy will likely be the deciding vote, assuming Perry does reach the high court, and he has shown himself to be sympathetic to LGBT rights, having written the Court’s opinions in both Romer v. Evansand Lawrence v. Texas.
Romer in particular was relied on in Rheinhardt’s opinion in Perry. In Romer, Colorado amended its constitution to forbid any state, county, or municipal government entity from recognizing sexual orientation as a protected class. Like the Ninth Circuit did recently, the Supreme Court held that such a law would not even pass rational basis scrutiny. It seems likely, therefore, that the Supreme Court would be willing to affirm the narrow holding in Perry that remains in line with the opinion in Romer.
DOMA Litigation and What Lies Ahead
Shortly after a Massachusetts district court ruled that the Defense of Marriage Act was unconstitutional, insofar as it denied legally married same sex couples from receiving federal benefits, the Obama Department of Justice announced that it would cease defending the Act in courts. In response, House Republicans hired a legal team to defend the Act in the courts. Last week, this legal team was handed a defeat in the Northern District of California where a George W. Bush appointed judge ruled that the same sex spouse of a Ninth Circuit attorney was owed spousal benefits.
Now, bear with me, because here is where I attempt to predict the future, but of course I am no more clairvoyant than the next law student/blogger at the Law Journal for Social Justice. Right now, we do not seem to be close to a same sex marriage version of Loving v. Virginia, but it is possible that no such case will be needed. Let us first assume the Supreme Court upholds the ruling in Perry. Next we might have a similar case if Republicans in Iowa or New Hampshire succeed in amending the Constitution in their state to ban same sex marriage, where Perry might be expanded to say that same sex marriage, once granted, may not be revoked under the Equal Protection clause in all cases. Meantime, either of the above DOMA cases may make their way up to the high court with a ruling that DOMA is unconstitutional, insofar as it discriminates against legally married same sex couples. If that happens, it is not much of a stretch to say that all States, regardless of whether they allow same sex marriages, must recognize the marriages of same sex couples in other states (which would partially overturn the ban in Arizona’s constitution).
Once that occurs, we may not need a Loving. There is no reason to think that public acceptance of same sex marriage will not continue to improve as it has done in the years since Goodridge. While these legal battles are going through the courts, who can tell how many states will have legalized same sex marriage? By the time the Court gets around to another Loving, it may be so uncontroversial as to not be noticed by most Americans.
But then, I guess I’m an optimist.
 798 N.E.2d 941 (Mass. 2003)
 The notable exception to this was in Korematsu v. United States, 323 U.S. 214 (1944) which upheld Japanese internment as surviving a strict scrutiny review.
 Nos. 10-16696, 11-16577 2012 WL 372713 (9th Cir. 2012), not yet published in federal reporter.
Id., at *1.
 388 U.S. 1 (1967).
 517 U.S. 620 (1996).
 539 U.S. 558 (2003).
 Gill v. Office of Personnel Management, 699 F.Supp2d 374 (D.Mass. 2010)