Posted on Fri, Jun. 08, 2012

Last week a three-judge panel of the 1st Circuit Court of Appeals found a central provision of the federal Defense of Marriage Act (DOMA) unconstitutional. This week, the entire 9th Circuit Court of Appeals refused to disturb a ruling by a panel of that court that Proposition 8 — California’s anti-gay marriage initiative — also violated the Constitution. Both cases represent big wins for the gay-rights movement. And both appeals now turn to the Supreme Court for ultimate answers.

The two cases are on parallel tracks to get to the court next fall, to be briefed and argued next spring and to be decided by next June. The question now becomes which appeal the court will hear, and why.

It’s important to emphasize that the two appeals raise different issues.

The DOMA case out of Massachusetts challenged the federal law denying federal marriage benefits to gay couples. It doesn’t implicate the right to marry per se but how states define marriage, thereby affecting whether gay couples receive the same federal benefits as heterosexual couples.

The Prop 8 case, on the other hand, was filed by opponents of the statewide referendum banning same-sex marriage. Judge Vaughn Walker struck that law down in 2010. It was then deemed unconstitutional on more limited grounds by a three-judge panel of the 9th Circuit Court of Appeals last winter. Both cases have been handcrafted to mirror the analysis in the Supreme Court’s 1996 decision in Romer vs. Evans, authored by Justice Anthony Kennedy, which struck down a Colorado constitutional amendment that did away with state laws protecting homosexuals.

The DOMA case was always seen by insiders as the best shot at winning a critical fifth vote from Justice Anthony Kennedy at the Supreme Court. Conventional wisdom still holds that it is the more likely vehicle for the court to decide these issues. The Prop 8 challenge was always seen as a tougher sell, raising broader questions that would sweep in potentially all Americans. That calculus changed somewhat after Judge Stephen Reinhardt wrote the 9th Circuit panel opinion in such a narrow fashion as to apply only to the facts as they unfolded in California. But Reinhardt’s backbends didn’t necessarily make the appeal a more palatable choice for the court. Many legal analysts merely saw it as an attempt by the most liberal appeals court in the nation to craft a decision so lacking in melodrama that the court could avoid taking it up at all. (An alternate theory held that the Prop 8 case might be attractive to Justice Kennedy precisely because the court could limit its conclusions to California and leave the larger issues for another day. Or decade.)

The First Circuit decision in Gill was a rather reluctant offering, tethered to states’-rights claims that may prove appealing to at least one of the court’s conservatives — especially Anthony Kennedy — but unlikely to advance the original project of superlawyers David Boies and Ted Olson of making same-sex marriage a federal constitutional right.

As has been the case for years now, litigators in the trenches have learned to ask for what they can get, and not what they want, and at least some lawyers believed that what Boies and Olson received from Judge Walker — the promise of a fundamental right to gay marriage — was just too big an ask at the highest court in the land.

This week’s decision from the 9th Circuit allows Prop 8 supporters 90 days to decide whether to appeal to the Supreme Court, which they now appear inclined to do. Boies and Olson were quick to note that while Gill and Perry arise in different contexts, the reasoning behind both is, as Boies put it, “essentially the same.” In each case, he explained, a history of discrimination against gay couples led to the harms caused. In each case he added, there was no truly reasonable rationale offered for the discriminatory measures. Both also clarified that while a victory on the narrow basis offered in the 9th Circuit would represent a “complete victory” for their clients, they’d be arguing for the whole package — fundamental rights to marry the one you love — at the Supreme Court as well.

It takes four justices to decide to hear a case, and that means that the years of national obsession over what Justice Kennedy might do now morphs into the eight other justices trying to decide which case to take based on what Justice Kennedy might do. I, for one, am grateful that the pressure is off the rest of us.

An old adage holds that you should ask and ye shall receive. Of course the older adage says lawyers shouldn’t ask a question to which they don’t already know the answer. The two Prop 8 lawyers are supremely confident on both fronts. The rest of us are no longer even sure what we are asking for.

Dahlia Lithwick writes about the courts and the law for Slate.