Why Perry might NOT go to the Supreme Court
The conventional wisdom that has emerged among journalists is that Perry v. Schwarzenegger is on a glide path to the Supreme Court -- yes it has to go through the Ninth Circuit first, but drama and quite possibly disaster for lgbt rights advocates inevitably loom at One First Street.
Maybe. Maybe not.
While the Walker opinion offers a strong analysis of the unconstitutionality of barring same-sex marriage that could (and should) be persuasive to other judges, it applies only to Prop 8, not to any other state's law banning marriage. Some of the findings of fact reach more broadly, but many are specific to the process by which Prop 8 was enacted.
The logical conclusion from Walker's opinion is that all anti-gay marriage laws are based to some extent on animus, and the decision provides a great foundation for challenges to other such laws. But it is at least possible that another case, brought in another state, could produce a different factual record or different legal arguments.
In addition to a particular set of facts, there are legal arguments against Prop 8 that are specific to it and that lgbt rights groups have stressed in their district court amicus brief.
What this geographic limitation means is that the true scope of this decision will depend on how broadly the Ninth Circuit frames it on appeal. The Ninth Circuit could decide the case in a way that would make the narrowness of the holding more apparent than it is from the face of the district court opinion.
Why is this important? A Court of Appeals opinion limited to Prop 8 - on both facts and law - would be much less likely to lead to Supreme Court review. This is one way the case may end at the Ninth Circuit.
Another way would be if the Court of Appeals accepts Plaintiffs' new argument that the Prop 8 proponents lack standing to appeal. If the Ninth Circuit agrees with Plaintiffs, it may not even reach the question of Prop 8's constitutionality. Of course, the Prop 8 proponents could then seek Supreme Court review on the standing decision. But it would be another easy way for the Supreme Court to duck a controversial issue.
Lastly, and especially if the standing question eats up time, perhaps the voters of California will repeal Prop 8 while the lawsuit is still pending in the judicial system. This would be my own favorite outcome, not because I think it is improper for courts to uphold unpopular rights, but because the political message of popular repudiation of a bigoted law would be so much more powerful than even the most eloquent court decision.