Legal Commentary

I am still working my way through the district court opinion in Perry, the Prop 8 case--a 3-hour flight should allow me to finish it. Looking at some media and legal-blog coverage this morning, I would pose some questions (I may have more when I finish reading):

1) Dale Carpenter calls this a "maximalist decision" that raises the stakes, because the whole issue of SSM now is in the record going forward. Carpenter argues that the "decision, as I read it, relies directly or indirectly upon every prominent constitutional argument for SSM. One could say this is a strength of the decision. If a higher court doesn?t like one reason, it might accept another. But it is also a weakness of the decision, from a gay-rights litigation perspective, since it invites a higher court to address them all if it decides to reverse the result. A sweeping victory becomes a sweeping defeat."

I am not a believer in judicial minimalism in any event. But I wonder if minimalism is especially inappropriate for a district court judge. That is, I wonder whether district judges have a unique incentive to be maximalist--to handle the entire case at once and to build as complete a record as possible for the court of appeals (and Supreme Court) to review. The alternative, of course, is to have the case yoyoing through the system for years--narrow district court decision, narrow appellate decision plus remand, new district court decision on different issues, etc. That may explain why Judge Walker took the unusual step of holding a full trial on a permanent injunction, rather than resolving the case on a motion for preliminary injunction or summary judgment.

Second, everyone (in the press and on the legal blogs) is working on the believe that, assuming the Ninth Circuit affirms, SCOTUS will take this case. But is there a chance it won't. Yes, this was a federal (rather than state) constitutional decision. And it is a "great case," a high-profile case of substantial public importance (thus demanding SCOTUS review on Brad Snyder's theory).

But its effect is limited only to California and, ultimately when litigation is brought, the other states in the Ninth Circuit; it has effect beyond that only if the Full Faith and Credit provision of DOMA is held unconstitutional (and every state now must recognize California marriages). This is not an issue that could not wait for some further "percolation," to see where other circuits go on the issue. Maybe this would produce a circuit split, the usual situation in which SCOTUS gets involved. Or maybe we will see unanimity across circuits, which might affect how SCOTUS views the issue.

This is especially true given the case's procedural posture. The ban was established by popular referendum rather than ordinary legislation, so there was additional evidence of animus in the record. More importantly, the State of California refused to defend the constitutionality of the ban; that is being done by the private citizens groups that supported Prop 8. So there is perhaps a question of appellate standing to challenge the district court decision or whether this is the best case for SCOTUS to directly and finally address the constitutional issues.