Plaintiffs Jeffrey Zarrillo, left, and Paul Katami are seen outside of the courthouse before a hearing in the Ninth Circuit Court of Appeals, Monday, Dec. 6, 2010, in San Francisco.
It's all but certain that the Supreme Court will hear a case over the constitutional right of gays to marry one another, and hear it soon, thanks to this week's lopsided decision by the full Ninth Circuit Court of Appeals to let stand earlier rulings striking down California's 2008 amendment banning same-sex weddings. All that stands between the case and the high court is a 90-day deadline for the losing side to ask the Supreme Court to take the case, and at least four of the nine justices to agree to do so.
That it is now likely that the Supreme Court will take up an appeal is evidence of how profoundly different a place America is today than in 2008, when Theodore Olson and David Boies brought the case on behalf of two gay couples in San Francisco. Everything about the case and the constitutional amendment known as Prop 8 — from the legal landscape to public opinion to the politics of marriage itself — is different.
On Tuesday, Olson, who successfully argued for George W. Bush's victory in Florida in 2000 and was later his solicitor general, told TIME and other media that changes wrought in America since they brought the case have been breathtaking. "The atmosphere and environ has changed enormously since this suit was filed," Olson said. "Public opinion has changed. The aggregate of the polls has changed 20 to 25 points in terms of acceptance of the right of individual to marry. There's been the repeal of Don't Ask, Don't Tell. President Obama's momentous announcement. And just last week, the decision from the 1st Circuit Court of Appeals in the Defense of Marriage Act case. Judges are recognizes all across the country the right of gay individuals to marry. All of that makes a vast difference in terms of acceptance. ... The court decisions and our case in particular has given the American people more opportunities to think about and accept the idea of gay marriage, and the more they do, the move favorably they are disposed to accept equality."
But there is an interesting wrinkle if the Prop 8 case is appealed to the Supreme Court by its proponents. Olson and Boies said Tuesday they will oppose any request for the case to reach the Supreme Court. They believe the Ninth Circuit ruling was right, and should stand, Olson said. A spokesperson later reconfirmed this stance, saying that the lawyers' duty to their clients required them to oppose any appeal to the Supreme Court. If the case is heard, Olson and Boies, said they will argue to the court in favor of both the sweeping call for a constitutional right to gay marriage, as District Judge Vaughn Walker ruled in his original decision in the case, and in favor of the Ninth Circuit's far more narrow ruling upholding the outcome of the case. In that ruling, Circuit Judge Stephen Reinhardt, one of the court's most liberal members, declined to say the U.S Constitution guarantees the rights of gays to marry. Instead, he said, California, having already determined through its supreme court that they could marry, did not have the authority to take those rights away through the initiative process.
That's a legal distinction that means nothing to the gay couples in California eager to marry, since any win will allow them to do so. But it could mean a great deal to couples in other states hoping that the victory in California will be expanded to the entire nation.
A broader judgment, affecting the rest of the U.S., may depend on whether the high court decides to hear the appeal on the 1st Circuit decision that upheld a lower-court ruling that the federal Defense of Marriage Act (DOMA) is unconstitutional. President Obama has already conceded the Clinton-era law is unconstitutional, and the Justice Department is not defending it in court. Lawyers for the House of Representatives are, however, and they too are expected to see a hearing before the Supreme Court.
It they get what they ask for, there could well be two cases dealing with the same broad issue before the court next summer. Boies and Olson both said it's plausible, though hard to predict, that the court would join the cases and hear them together.
If they do hear the cases together, there will be a Cassandra on the bench, not quite enjoying the fact that his prophecy has come true. Nine years ago, in June 2003, the Supreme Court handed down its landmark gay rights decision, Lawrence v. Texas. Six justices that day decided that the Constitution forbids states from criminalizing gay sex, as Texas and a handful of others still did in 2003. Perhaps alone among his fellow justices, Antonin Scalia saw the ruling for what it was — a first and necessary step to where the U.S. is today, with gay marriage on the court's long front steps.
Sitting in cold fury, he read his dissent aloud. "After having laid waste the foundations of our rational-basis jurisprudence, the Court says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' Do not believe it. More illuminating than this bald, unreasoned disclaimer is the progression of thought displayed by an earlier passage in the Court's opinion. ... Today's opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples?"
Scalia concluded that the ruling entailed "a massive disruption of the current social order." Nevertheless, if the cases get to the court, Scalia will also have the chance to reverse the advance of marriage equality — if he can get enough of the his fellow justices to vote his way.