Survey the array of cases about same-sex marriage that could be on their way to the Supreme Court, and you can see three sides in this legal war. There are the opponents of legalizing gay marriage — they're easy to identify. There are the supporters who are long-time gay rights lawyers and advocates — also clear. And then there are David Boies and Ted Olson, the superstar odd-couple pair who swooped in with a dazzling victory in their challenge to Proposition 8, California's referendum banning gay marriage.
Boies and Olson have the same goal as the gay rights community: equal marriage rights for all, across the country. But their strategy has been very different — both bolder and more foolhardy. At trial, and then in defending their victory on appeal, they went for the whole megillah: a broad ruling that marriage is a fundamental constitutional right for everyone, full stop, right now. This has the appealing, but demanding, ring of clarity. It requires the courts to take giant steps rather than small ones — which is often not what they do well.
The gay rights lawyers, by contrast, have carefully gone for less now in hopes of winning more later. In a half-dozen cases, they have successfully sued on behalf of gay couples who got married where state law allows them to but cannot receive federal benefits, like pensions, that go to other married couples because they're blocked by the Defense of Marriage Act. That's the law Congress passed in 1996 to define marriage as the union of a man and a woman for federal purposes. It's the reason why states that don't recognize gay marriage don't have to honor the weddings conducted in states that do.
Now the Supreme Court has a choice. As early as next week, the justices could agree to hear one of the more cautious DOMA challenges in states that include Massachusetts, Connecticut and New York. The Obama administration is on board for these cases. But the court could go for broke and take Hollingsworth vs. Perry, the California Prop 8 case. (The court could also do nothing, though given the number of percolating challenges that seems unlikely — Justice Ruth Bader Ginsburg suggested this week that it was likely the court would make a move.)
So, what should the justices do? They should take the step-by-step path. It's better for the future of gay marriage and wiser Supreme Court practice.
Prop 8 supporters are jumping up and down to convince the court otherwise. They lost at trial and on appeal to the U.S. Court of Appeals for the 9th Circuit, so they have the most to gain from Supreme Court review. Their petition to the high court is full of doom and gloom: “The 9th Circuit's sweeping dismissal of the important societal interests served the traditional definition of marriage is tantamount to a judicial death sentence for traditional marriage laws throughout this Circuit.”
At trial, the Prop 8 side failed to prove those important societal interests. Asked by the judge how allowing gay marriage harms opposite-sex couples, lawyer Charles Cooper famously said, “Your Honor, my answer is: I don't know. I don't know.” And if it were true that the 9th Circuit ruling in Perry upended marriage law throughout the circuit, that would be a big deal, since the territory extends to states like Idaho, Alaska and Arizona. But that's not the case. Judge Stephen Reinhardt, the author of the 9th Circuit ruling, went to great lengths to limit its scope. He called Prop 8 “unique” because it took away a right to marriage that had already been exercised by thousands of California couples. It was the take back that was the problem, Reinhardt said. He relied heavily on Romer vs. Evans, the 1996 Supreme Court ruling in which swing Justice Anthony Kennedy said that the state of Colorado was not allowed to pass a law that took away protections against discrimination provided by local gay rights ordinances. Laws that withdraw rights from particular groups aren't allowed because they appear to be “born of animosity,” Kennedy wrote. Reinhardt concluded that Prop 8 had exactly this problem.
An August decision out of Hawaii also demonstrates that the 9th Circuit hasn't foisted gay marriage on unwilling states. In Jackson vs. Abercrombie, a district court upheld Hawaii's law banning gay marriage — even though Hawaii, like California, had earlier legalized gay marriage via a court ruling. The difference between the two states is that, in Hawaii, no same-sex couples actually married, because the ruling didn't go into effect. That was enough of a distinction, the court said in Jackson.
The Hawaii ruling was a defeat for gay marriage in that state but a win for those pushing for the step-by-step approach in the jockeying over Supreme Court review. The city of San Francisco, for one, pointed to Jackson in urging the Supreme Court to leave Perry alone. If the 9th Circuit's ruling applied only to California, then there's a lot less reason to get involved.
Boies and Olson also have opposed Supreme Court review: not because they want to, but because they had to. Their clients are the gay couples of California who can get married if the Supreme Court denies review but who could lose that right if the court takes up the case. Still, there's a revealingly wistful note in the Boies-Olson brief: Calling gay marriage “the civil rights issue of our time,” they can't resist calling their case “an attractive vehicle” for addressing it. But the lawyers have to say that they still shouldn't get to go to the dance. They already won.
There's a broader historical lens here, too: As Yale Law professor William Eskridge argues, the Supreme Court is better off taking it slow when it confronts “dueling social movements” grappling over “core notions of equality.”
Eskridge, who has written for Slate, points out that 65 years ago, the court was wise to stay out of the initial legal skirmishes over interracial marriage. If the justices had taken a case early on, they probably would have upheld a discriminatory ban, because most lawyers and judges considered laws that forbade marriage between blacks and whites constitutional. And if the court had jumped in to upend that assumption too early, that might have triggered a backlash. By waiting until 1967 to strike down anti-miscegenation laws in Loving vs. Virginia, the court made its own job easier. “Loving was legally impregnable in 1967 in ways that it would not have been in 1948,” Eskridge writes. By then, it was clear that “ ‘racial purity' was a myth reflecting prejudice rather than science.”
I think you could say the same thing now about the myth that gay marriage harms the institution of marriage, or the myth that it's bad for children because gay couples are inferior parents. But legally speaking, we're still in the early days. Gay marriage is legal in six states plus Washington, D.C., and is pending voter approval in four more. According to Eskridge, there are 100,000 LGBT couples who are now married in the United States (31 percent of whom are raising children). That's a huge stride forward, and public opinion polls are moving in the same direction. But that doesn't mean the Supreme Court is ready to order up gay marriage in the states that don't have it yet. Or even that the justices should. Deciding that same-sex couples in states with same-sex marriage should receive the federal pensions and military benefits that are their due — that's a manageable mouthful to chew. The Supreme Court should take the small bite now and leave the rest of the pie for later.
Bazelon is a Slate senior editor and writes about law, family and kids.