Perry v. Schwarzenegger, also known as “The Prop 8 Trial,” or the first serious test of the federal case for gay marriage, concluded earlier this week, following pointed pre-closing questions from Judge Walker, effective answers, and closing arguments for which reviews are, preliminarily, positive for the side of Justice. This is enough to make David Boies, the litigator’s litigator, optimistic to the point of naiveté:
Boies said he thought it likely that Judge Walker would issue his ruling in August—my own hunch is that he will rule for the pro-same-sex marriage side—and that either side would appeal immediately. Indeed, Boies and Olson hope the Perry case will be appealed all the way up to the Supreme Court, and that they will ultimately win a decision comparable to Loving v. Virginia, the 1967 Supreme Court case that declared laws against interracial marriage unconstitutional.
It’s not naïve to expect a victory before Judge Walker. In fact, I share Boies’ confidence, and the New Yorker’s, that, especially because Judge Walker appeared to take Romer v. Evans deadly seriously, as one should, we’ll get a pro-equality ruling that, while not recasting gay men & women as a “protected class,” will nonetheless find that the Prop 8 advocates impermissibly relied exclusively on gay-baiting, animus, and bigotry to make their case, and that Prop 8 is therefore void as a textbook case of the majority abusing an unpopular, but otherwise harmless minority.
Of course, the bad guys will immediately take an appeal, but will be, by that point, stuck with an extremely favorable, pro-equality, and frozen factual record (factual findings can only be disturbed on appeal for “clear error”), and thus will be forced to argue not that animus didn’t exist here, but that its existence is irrelevant. That’s an uphill battle. Such an uphill battle that victory before the 9th Circuit is also a realistic possibility, given the right selection of judges (though if the case is heard en banc, either at the outset or on a motion for rehearing, that calculus changes).
Should Boies & Olson secure that victory, they’ll have done a great thing, but they’ll not have won. Politically, a Supreme Court reversal of any favorable verdict is essentially guaranteed. They will, however, have forced the Supreme Court into making an unpopular, clearly incorrect decision for nakedly political reasons. The reversal will happen in one of two ways. The first, and most likely option, entails a 5-4 court reversing or limiting Romer v. Evans, which will require Justice Kennedy to gut his own opinion. There’s some elegance to that. The second, more insulting option would require the Supreme Court to essentially disregard the trial record, validating Romer but engaging in some fiction about how plaintiffs never carried their burden of proof, lower court be damned. This would be outrageous but not unheard of. Justice Kennedy, and therefore the modern Supreme Court, in fact has very little regard for trial court findings in matters carrying even slight political import. See Gonzales v. Carhart, 550 U.S. 124 (2007) (reversing three federal circuits, each of whom had, relying on a strong, unchallenged trial record, struck down the Partial Birth Abortion Act of 2003). Either way, the eventual reversal will look, and in fact be, ridiculous.
Query whether Boies & co. know this, and whether such a defeat is, itself, the victory they’re hoping for. In America’s brief history, we’ve seen our fair share of nakedly wrong decisions, and they never stand for long. In fact, sometimes they focus the debate, and render eventual victory a near-certainty. Scott v. Sanford showed just how disgusting the justification for slavery actually was, and pushed that question towards its bloody resolution, while Plessy v. Ferguson, by stating clearly the narrow assumption upon which its validity depended, gave activist groups a clear target. If it comes to a Supreme Court reversal, then, the anti-equality lobby will end the day weaker than they began it, and be forced to defend an increasingly ridiculous premise from a population suddenly aware of its toxicity. And that, as they say, is not nothing.