Kenji YoshinoBoth before and after the recent Perry v. Schwarzenegger decision overturning Proposition 8, an amendment to the California state constitution banning same-sex marriage, legal commentators have been speculating on the prospect of the federal case's going all the way to the Supreme Court. Perry v. Schwarzenegger, which was brought by David Boies (LL.M. '67) and Theodore Olson, a member of the Dwight D. Opperman Institute of Judicial Administration's board of directors, is already on its way to the U.S. Court of Appeals for the Ninth Circuit.

In an August 13 podcast interview, Kenji Yoshino, Chief Justice Earl Warren Professor of Constitutional Law, and Atticus Gannaway, senior writer for the Law School magazine, revisited the topic of same-sex marriage's constitutionality. They had previously discussed that subject in an April 2009 podcast after both Iowa and Vermont legalized same-sex marriage just four days apart. This time, Yoshino looked forward to what could happen at the appellate level.

"What's really interesting about the [Perry v. Schwarzenegger] opinion is that it acknowledges that a lot of the furor around this issue is religious, but says that in a court of law, for constitutional reasons, those religious reasons cannot count," Yoshino said. "So the debate that's happening out in the public square is very different from the one that's happening in the courtroom."   

"This opinion is extremely careful and sedulous and scholarly in its approach to all of the issues, and provides supporting evidence for everything that [the litigants] said," Yoshino observed in considering the opinion's chances of being upheld by the Ninth Circuit. He added, "A lot of the testimony that was same-sex couples proved to be so moving that allegedly some of the proponents of Proposition 8 were visibly moved." 

Reiterating his stance from April 2009, Yoshino felt the time was still not quite right for same-sex marriage proponents to bring their arguments to the Supreme Court. Only five states out of 50, Yoshino pointed out, had decided to legalize same-sex unions: "If I had my druthers, I would have the Perry v. Schwarzenegger case be decided on grounds that were specific to California.... We're not washing out some outliers; we're actually washing out a supermajority of the country."

Posted on August 17, 2010