The conventional analysis among legal commentators seems to be that the Supreme Court will inevitably have the final word on Prop 8, in the wake of the 9th Circuit’s recent decision striking down the ballot initiative (although, interestingly, David Boies disagrees somewhat with this sentiment). On the surface, it’s easy to see why the Court might want to grant cert: the case has been covered extensively in the news media; the decision strikes down a popularly passed initiative on Equal Protection grounds; and it’s a 9th Circuit opinion authored by Judge Reinhardt that comes with a lengthy dissent. But digging a little deeper, I’m not so sure that the Supreme Court will grant cert, at least to decide the 14th Amendment issue.
To see why, it’s important to first separate out what the opinion does and doesn’t decide. The panel took pains to emphasize that they were deciding only the most narrow question presented: whether Prop 8 “singles out same-sex couples for unequal treatment by taking away from them alone the right to marry.” And in striking down the initiative, the panel majority suggested that they were straightforwardly applying Romer v. Evans, which struck down a similar Colorado ballot initiative that denied rights to homosexuals that were granted to the population more generally. What Perry explicitly declined to do was either recognize a fundamental right to gay marriage or apply heightened scrutiny to classifications based on sexual orientation. So, even if you think that the Perry opinion applies beyond the California ballot initiative context, it certainly applies at most to states that allow some form of civil union but don’t allow gay marriage. This Wikipedia map suggests that between 6 and 8 states have such policies, and 5 of them are in the 9th Circuit (New Jersey and Rhode Island are a bit unclear).
So, in a decision with those limits, which four Justices will believe that it is beneficial to grant cert in Perry? I’ll assume for this purpose that four Justices would make gay marriage a constitutionally guaranteed right, while another four would give states leeway to enact any laws they want with respect to gay marriage. Thus, Justice Kennedy would be the swing vote, and would have two basic options: 1) affirm the opinion as a correct application of Romer; or 2) distinguish Romer and uphold Prop 8. The Court’s liberal wing has little reason to grant cert, because even if the Court reaffirmed the 9th Circuit it might only affect one more state (Illinois). I suppose there’s an outside chance that the Court could affirm on a broader ground, but this possible benefit seems strongly outweighed by the potential harm from a reversal.
The calculus for the conservative wing is more complicated. Justice Kennedy isn’t going to overturn Romer (which he authored), so the key question is how he might distinguish it. The panel opinion suggests one option: while Romer denied protection to homosexuals “across the board” and denied them a variety of substantive rights, Prop 8 only excises one particular right. Judge Smith, in dissent, found that Prop 8 thus burdens gays and lesbians to a far smaller extent than the amendment at issue in Romer. Another option is hinted at by Michael Dorf: the Perry decision might place some weight on the constitutional “endowment effect” of a state court decision which had allowed 18,000 same-sex couples to get married in California. These are both certainly plausible ways to distinguish Romer for a Justice who so desired. But the logic of Romer is far more in line with the panel majority’s opinion, and Justice Kennedy might be hesitant to so obviously cabin his decision. In any case, even if the conservative wing believes that Justice Kennedy would likely vote to reverse the 9th Circuit, they might gain one of two advantages by waiting for another vehicle to review the issue of gay marriage. First, after the next presidential election, one of the more liberal Justices could leave the bench and be replaced by a Justice with opposing views, allowing the conservative wing to triumph without needing Justice Kennedy’s vote. Second, they might get a case which is more obviously distinguishable from Romer, or in which a lower court confers the right to gay marriage more broadly; in either case, it would probably be easier to reverse the decision. Thus, while the conservative wing might gain some benefit from granting cert in this case, there’s very little downside to playing the waiting game. At worst, they’ll get a similar case a few years later. At best, they’ll get a better vehicle or a better Court composition for their purposes.
One reason that commentators might be expecting a cert grant in Perry is that the Court has agreed to hear almost every other hot-button case this term (the ACA litigation, US v. Jones, US v. Alvarez, Arizona v. US, etc.). But these cases differ from Perry in important ways. The ACA litigation and Jones both involved circuit splits. In Alvarez, the 9th Circuit struck down a federal law (the Stolen Valor Act). And the Arizona immigration case involves the extent to which federal immigration law preempts state law. By contrast, there’s no circuit split in this case and no obvious potential conflict with federal law. To the extent that one takes seriously the Court’s rule on considerations governing granting cert, Perry doesn’t appear to fall into any of those categories. Of course, the Court will grant cert if five Justices clearly view Perry to be a misapplication of Romer, but short of that there’s no positive reason that the Court has to grant cert.
Finally, a third option is open to the conservative wing that might be even better strategically: granting cert for the limited purpose of resolving the standing issue. I won’t pretend to know much about the substantive law on standing as it applies to this case, but such a move seems no-lose from a strategic perspective. If the Court finds the intervenors didn’t have standing, the case is narrowed further to apply only to California. And if the Court affirms that the intervenors had standing, the issue of gay marriage could still be decided on the merits in a later case.
For these reasons, I think there’s a non-negligible chance that the Court will deny cert on the 14th Amendment question in Perry. At the very least, the Court’s decision is far from a foregone conclusion.