Home / General / Good, And Bad, Reasons For Mixed Feelings About <i>Perry</i>

Good, And Bad, Reasons For Mixed Feelings About Perry



Which is simply to say that legal details aside (I’m not a lawyer, but you can play one on TV by reading the decision) this seems like a clear victory for moral justice and nobody has any reason to have mixed feelings about it.

To elaborate a bit on my previous post, I agree 100% of this in terms of fears of a backlash. As long-time readers of this blog know, both here and in my academic work I’ve argued that the idea that social change produced through the courts leads to greater conflict is not supported by any good evidence, and also that the idea that conflict is a reason to avoid social change makes no sense. I definitely recommend this Ryan McNeely post, which provides further support for these claims.

So there’s no reason to have mixed feelings about the decision because finding a constitutional right to same-sex marriage would generate a backlash. The reason to have mixed feelings is that circuit court decisions are only remain authoritative if higher courts are willing to uphold them, and the conditions in the Supreme Court right now just aren’t very favorable. Strictly speaking, this is more a criticism of the decision to litigate now rather than the decision per se, but it’s worth emphasizing that although skeptics of the power of the courts to generate social reform are wrong about the backlash issue, it doesn’t follow from this that litigation is always a sound strategic option.

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  • joe from Lowell

    The view from Massachusetts: within five years of the Goodrich decision, a clear majority supported gay marriage – which they did not at the time the decision was made.

    There was an effort to put repeal on the ballot, and it failed. Not a single state legislator who opposed putting it on the ballot lost in the next election, while several that supported repeal were defeated.

    Shortly after that, an other effort was made. All it would have taken was 25% of the state legislature to support putting a repeal question on the ballot, and they couldn’t even manage that.

    • mark f

      Ah yes. I remember holding signs at my polling place in Worcester on election day 2004. My city councilman was also there, supporting Congressman McGovern’s chief of staff for state senate. A man holding signs for the district’s single-issue anti-gay-marriage state senate candidate kept telling the councilman that if he got his act together, Worcester could have a National League team “just like the Mets.”

      I think that guy’s candidate got about 5% of the vote.

  • Scott Lemieux
  • Is there any chance that the Supreme Court could decide in such a way that actually pushes reform back, instead of just returning us to the status quo of the states deciding for themselves? If the chances are non-existent/minimal of losing ground, then I guess it was worth the shot of getting equality now as opposed to waiting for more favorable conditions… but if there is a real possibility that a conservative court could put existing reforms in legal jeopardy with their decision, then it seems an unwise roll of the dice.

  • John

    Is there any chance that the Supreme Court could decide in such a way that actually pushes reform back, instead of just returning us to the status quo of the states deciding for themselves? If the chances are non-existent/minimal of losing ground,

    Correct me if I’m wrong, but a Supreme Court decision which says that nothing in the equal protection clause grants a right to gay marriage would set a precedent against the federal courts ever deciding that gay marriage is a constitutional right. Whereas if it’s just not litigated now, the possibility remains open to get such a ruling later, when the court is more liberal.

    A definitive Supreme Court ruling that there’s nothing about gay marriage in the constitution would mean that the various states that have constitutional amendments banning gay marriage can basically never have that overturned by a court decision.

    • rea

      It’s worse than that. The likely reason for a holding that gay marriage is not constitutionally required would be that the legislature has a rational basis for discriminating against gays. A new Dred Scott decision, in other words.

      But I don’t think it will come to that. I think we’ll see the case resolved on some narrow, technical basis.

  • Snarki, child of Loki

    Where was the backlash against “Loving vs. Virginia”?

  • jsmdlawyer


    As far as hoping for a sweeping Supreme Court decision declaring a constitutional right to marry for same sex couples, I agree with you that such an outcome is unlikely, although I suspect that Anthony Kennedy may be more willing to go there than we all think. Or maybe I’m just a dreamer.

    But getting back to a more reality based view of the world, what about a more narrow decision based on Romer v. Evans that because gays and lesbians had a right under California law to marry, and now they don’t, and they can’t get it back short of a constitutional amendment undoing Prop 8, that this constitutes a violation of equal protection based on Romer? Kennedy, as we know, wrote the decision in Romer, and on issues like this, I think that he (like O’Connor, oh how I wish she were still on the court for this one) fancies himself a more open and tolerant establishment elitist than those unwashed heathens braying at the moon about death panels and socialism.

    While he may not be willing to go as far as to sweep away all state laws on marriage (not to mention DOMA), it seems to me that a Romer-type argument, as a fallback position, might well be attractive to Anthony Kennedy, if not to the rest of the right wing of the court.

    A decision of this type, while not a sweeping victory, would (1) reinstate marriage in California, a demographically enormous step that would justify the entire exercise, and (2) leave the broader question for another day, giving advocates time to (a) wait for the emerging pro-marriage majority to assert itself and (b) await a more sympathetic Supreme Court to bring the final assault.

    While I’ve done some GLBT advocacy on the state level and work closely with advocacy groups on state and local issues, I claim no special expertise on this. I just reread Romer and feel compelled to raise the question, and you’re a respected fellow traveler. Tell me why I’m wrong.

    Jonathan Shurberg

    • Scott Lemieux

      I will have a post on this, but basically I’m very skeptical about a narrow way to invalidate Prop 8. It’s unclear how the equal protection clause could prevent a state from taking away same-sex marriage but not to deny it in the first place. The amendment in Romer was broader than necessary to invalidate the civil rights protections of municipalities, which was central to Kennedy’s opinion. I don’t see a parallel here.

      • Nate W.

        I think that Judge Walker left enough room for the appellate courts to hold that a statutory scheme that gives all the substantive benefits and responsibilities of marriage but withholds the name marriage lacks a rational basis. That would kick the rest of the questions down the road while upholding the ruling.

        • Scott Lemieux

          Interesting. I guess that one’s possible…

  • Teavherboy

    Scott, a question from a total layperson/non-lawyer. A number of comments about this ruling have claimed that due to the detailed and lengthy finding of fact section, it will be hard for an appellate court to overturn. Are they talking specifically about the 9th Circuit, or both the 9th and the SC? Would the findings of fact make it more difficult for the SC to over turn this ruling is basically what I’m curious about.

    • Glenn

      The district court’s finding of facts are given heightened deference (i.e., reviewed only for “clear error”) by both the Circuit Court of Appeal (here, the 9th) and the Supreme Court.

      Personally, while the factual findings do close off some avenues, my feeling is that if the Supremes overturn this it will be based on some combination of assertions about the essence of the institution of marriage (i.e., as being inherently man+woman) and that this simply constitutes a moral judgment that is within the power of the government to enact. (To be clear, I vehemently disagree with both ideas.) These are questions either of law or of “legislative facts” that are not in any way insulated from review.

    • matth

      I would add that the line between facts and the law can be fuzzy in practice. For example, “Do these probably-outdated studies show that CA has an interest in forbidding gay marriage?” is a factual question. “Does the rational basis test allow CA to rely on these studies, even though they’re probably outdated, to show its interest in forbidding gay marriage?” is a question of law.

      In order to answer the factual question, you may have to implicitly answer the legal question. But appellate courts would not have to defer to your answer to the legal question.

      • jsmdlawyer

        Not to be ridiculously confusing, but there’s actually FOUR categories: (1) questions of fact, (2) questions of law, (3) mixed questions of law and fact, AND (4) rulings on evidentiary issues (what to allow into evidence and what to exclude).

        Appellate courts (including the SC) are supposed to defer to trial court factual determinations unless they are “clearly erroneous,” i.e., as long as there is “some evidence” to support the conclusion, even if there’s a ton of contradictory evidence or even if fact finder chooses not to believe unrebutted evidence. Bottom line is that on fact questions, fact finder is entitled to pick and choose what he or she wants to believe.

        Questions of law get no deference — they are reviewed “de novo” by the appellate court.

        Mixed questions of law and fact are reviewed under a hybrid standard of deference. Purely factual determinations (who, what, when, where, etc.) are reviewed under a “clearly erroneous” standard, while conclusions drawn from those facts (did the facts support the ultimate conclusion drawn by the judge?) are reviewed de novo.

        Evidentiary questions are reviewed under what is known as an “abuse of discretion” standard. Under this principle, even if the appellate judges are agreed that they would have reached a different decision than the trial judge, they will defer to the trial judge’s ruling if it was within a wide boundary of discretion, i.e., the right rules were applied, there was some evidence to support the rationale applied by the trial judge, and his or her reasoning was appropriate under the law). Only if the trial judge’s ruling on evidence falls outside this broad spectrum of appropriateness will an appellate court reverse the trial judge.

        What all of this should tell you is that how the appellate court chooses to categorize the questions being reviewed is critical. If something is categorized as a “factual determination,” there’s pretty much no chance that it will be overturned by the appellate court. If a ruling is categorized as an exercise of “discretion,” pretty much the same reasoning follows: unless the trial judge was simply acting irrationally, he or she will be upheld.

        If, but only if, an appellate court deems an issue presented to it as a “question of law” is it likely that the determination of the trial court becomes likely to be reversed, because in that situation the appellate court can pretty much ignore what the trial court did and make its own decision in whatever manner it determines to be appropriate.

        Lawyers are a pain in the ass, aren’t we?

        Jonathan Shurberg

        • Teacherboy

          Yes, lawyers are a total pain in the ass, and yet you all answered my question perfectly. Thanks. My head says that they will uphold on a narrow clause, but my gut still thinks that given this court, they will throw it out. I guess we’ll see.

  • Teavherboy

    I misspelled “Teacher” in my name above. Nice…

  • Ralph Hitchens

    This seems to be a fairly straightforward application of the equal protection clause. Rights accrue to a married couple of opposite sexes, so on what grounds would you conclude that couples of the same sex aren’t entitled to identical rights? It seems to me that the Supremes can’t in good conscience rule that “nothing in the equal protection clause grants a right of gay marriage.”

    • Joey Maloney

      You fail to consider that even the equal protection clause is subordinate to the “teh buttsex is icky” clause.

      And note that at least one third of the current court can’t do anything “in good conscience”.

  • Brad Potts

    Do you believe that the defenders of Prop 8 didn’t their “‘A’ game” to the circuit court?

    From what I have read, their argument was laughably bad, with their one witness basically admitting that gay marriage fits the six qualities of marriage in general.

    I don’t see what the SCOTUS could draw on to come to a different ruling than Judge Walker.

  • Aaron G

    When New York State ruled that gay marriage was not required by the state constitution, it was almost entirely based on the “Won’t somebody please think of the children” argument. The strongest part of the decision, to me, is the finding of fact that children are not better off with straight parents than gay parents; given the weight of evidence supporting this conclusion, it seems difficult to rule is “clearly erroneous”. So, if SCOTUS wants to strike down gay marriage, they will have to find a reason other than creating an optimal environment for raising children, something that wasn’t really presented in the case. Prop 8’s argument, as quoted in the decision, was as follows:

    “Proposition 8 is simple and straightforward. … Proposition 8 is about preserving marriage; it’s not an attack on the gay lifestyle. … It protects our children from being taught in public schools that “same-sex marriage” is the same as traditional marriage. … While death, divorce, or other circumstances may prevent the ideal, the best situation for a child is to be raised by a married mother and father.
    …If the gay marriage ruling [of the California Supreme Court] is not overturned, TEACHERS COULD BE REQUIRED to teach young children there is no difference between gay marriage and traditional marriage.
    We should not accept a court decision that may result in public schools teaching our own kids that gay marriage is ok. … [W]hile gays have the right to their private lives, they do not have the right to redefine marriage for everyone else.” (pp. 6-7)

    Given that the argument about children was debunked as a finding of fact, the only remaining argument seems to be animus. While I’m always cynical about the ability of the Supreme Court to apply what seems like straightforward law, in this case I find myself hopeful that the author of Romer will apply it.

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