Perry v. Hollingsworth prediction: Prop 8 is going down – in a very big way

January 29, 2013

Supreme Court LGBTPredicting the outcome of Hollingsworth v. Perry – the legal challenge to California’s Proposition 8 – presents some interesting questions.

But not because I have serious doubts over whether the Supreme Court will affirm or reverse the Ninth Circuit’s judgment: the Court is almost certain to affirm the court of appeals’ judgment and strike down Prop 8.

Instead, the interesting part of Perry comes from all of the possible approaches that SCOTUS could take in affirming the Ninth Circuit.

SCOTUS ClipboardBefore I get further into that, though, let me explain quickly why I believe the Court is likely to uphold the Ninth Circuit’s ruling.

In its ruling almost a year ago, the Ninth Circuit held that 2008’s Proposition 8, which revoked the right of same-sex couples to legally wed in the state of California, failed the rational basis test as found in 1996’s Romer v. Evans.

Romer held that, when evaluating the constitutionality of a law under the “rational basis” standard – which requires that the law further a “legitimate” state interest in some “rational” way – animus towards a particular group is categorically not a “legitimate” state interest.

The Ninth Circuit found Prop 8 to be “remarkably similar” to the challenged law in Romer, because both rescinded previously established rights from a particular group.

And, like the Supreme Court in Romer, the Ninth Circuit considered several other offered justifications for Prop 8 to overcome “the ‘inference’ of animus,” but, just like in Romer, the Ninth Circuit “found them all lacking.”

The logic seems remarkably similar to Romer’s, and if SCOTUS also sees it that way, we would be looking at an easy victory for Prop 8’s challengers – since the author of the Romer majority opinion was none other than Justice Anthony Kennedy himself (today’s so-called “swing vote”).

This is one big reason why I predicted back in November that the Supreme Court wouldn’t hear Perry – they would be essentially retreading the same ground they did 16 years ago in Romer.

The other big reason for my earlier prediction is that the impact of simply affirming or reversing the Ninth Circuit would be limited to the one and only state that took away same-sex couples’ legal right to marry.

Obviously, my prediction was incorrect; but where did I go wrong?

That’s where the interesting part comes in.

I still believe that the Court won’t simply make Perry a rehash of Romer, nor do I believe that our highest judicial authority would have bothered with a case on such a hot button topic if the implications were limited to one state (even our most populous one).

I do not believe that it is purely coincidental that the Court simultaneously granted certiorari to both Perry and U.S. v. Windsor, the case challenging Section 3 of the federal Defense of Marriage Act (DOMA), nor that SCOTUS scheduled oral arguments for these two cases on two consecutive days simply by chance.

Lastly, I strongly suspect that SCOTUS will announce its rulings on these two cases on the same day, if not in a joint opinion.

What am I getting at?

Supreme Court BuildingPerry and Windsor are going to be addressing the same question: do bans on same-sex marriage violate the Equal Protection Clauses of the Fifth (Windsor) and Fourteenth Amendments (Perry)?

This much may have been obvious from the fact that the Court accepted the question as presented by the petitioners, the Prop 8 proponents (i.e. “Does the Constitution prohibit states from banning same-sex marriage?”).

Nevertheless, SCOTUS could still easily stick to the confines of the logic used by the Ninth Circuit, even with this question…but, for all of the reasons I’ve already submitted, it won’t.

Instead, this June, we’ll see Perry’s ruling entwined with Windsor ‘s to produce one monumental holding:

Be it at the federal, state, or local level, the Constitution forbids any government from prohibiting the marriage of same-sex couples.

As such, just as in Windsor, the Court will rule 7-2 to affirm.

(If you want a breakdown for each individual Justice, see my post predicting the outcome of U.S. v. Windsor.  The logic is largely transferrable to Perry.)

Hollingsworth v. Perry

Question Presented

Does the Equal Protection Clause of the Fourteenth Amendment prohibit the State of California from defining marriage as the union of a man and a woman?

Lower Court’s Decision


My Prediction

AFFIRM 7-2 (Majority: Roberts, Alito, Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan; Dissent: Scalia and Thomas).

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