The following essay for our same-sex marriage symposium is by William Duncan, the director of the Marriage Law Foundation. He has represented amici in Perry v. Schwarzenegger and Commonwealth v. U.S. Department of Health and Human Services, two federal constitutional challenges to laws defining marriage as the union of a husband and wife.
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There is an emerging conventional wisdom that the question of whether the U.S. Constitution mandates same-sex marriage is going to be resolved in the U.S. Supreme Court and probably soon. To be sure, this kind of speculation is not entirely new. In the wake of the Court’s decision in Lawrence v. Texas there was talk of same-sex marriage being next on the agenda, based primarily on some expansive language in the majority opinion of that case (and Justice Scalia’s interpretation of that language in his dissent). That speculation, of course, ignored important caveats in Lawrence cabining its effect to private sexual behavior rather than public status.
Two recent lawsuits have made the hypothetical idea of a same-sex marriage decision by the Court much more real. The first is the well-funded  challenge to California’s marriage amendment, Proposition 8 , brought with much publicity and which has resulted in significant acclaim for the big-name attorneys involved. The trial court concluded the state marriage amendment violated federal constitutional guarantees and an appeal is pending in the Ninth Circuit.
This case, Perry v. Schwarzenegger, has been presented  from the outset as a vehicle for Supreme Court review of marriage laws. The fast-track intention of the case’s originators has not materialized though. The first obstacle was the trial court itself. A series of questionable decisions about discovery, televising the trial, and use of the recordings of the trial has stalled progress. More importantly, the Ninth Circuit has asked the California Supreme Court for an opinion on whether the defendants on appeal even have standing to bring the appeal. Arguments on that question are scheduled  for next month.
The standing issue is salient since California’s governor and attorney general refused to defend Proposition 8 because they agreed with the plaintiffs that it is unconstitutional. The trial court allowed the ballot measure’s sponsors to intervene but then decided when issuing its opinion that perhaps they had not properly had standing after all.
The source of this change of heart is not clear but may be intended to insulate the trial court decision from review. (If the sponsors did not have standing, there would seem not to have been a controversy for purposes of Article III standing, though, so if this is a tactical decision it may not be a successful one.) What it all portends remains to be seen of course, but the path to the Supreme Court for this case appears more obscure than it once did.Â
The second case (or really, set of cases) challenges the definition of marriage for federal law purposes in the Defense of Marriage Act approved by Congress in 1996. That Act has only been intermittently challenged since enactment and never by movement organizations. These groups have been intent on pursuing a strategy of getting state courts to mandate same-sex marriage while waiting for a more propitious time to take their case to the Supreme Court. (There was, in fact, some debate among activists about the wisdom of the Proposition 8 lawsuit when it was brought.) After the inauguration of President Obama, whose Administration is publicly opposed to DOMA, the lawsuits came. The first two were decided in favor of plaintiffs (on novel grounds) by a federal trial court in Massachusetts and have been consolidated on appeal at the First Circuit.Â
Although there has been talk of which case would go to the Supreme Court first, the challenge to Proposition 8 or the challenge to DOMA, it is not certain that the intent of the proponents of the DOMA challenge has been to get Supreme Court review. Since same-sex marriage is relatively confined geographically, only a few circuits would have to buy the constitutional claims to accomplish the practical result sought by the lawsuits – forcing the federal government to recognize state same-sex marriages for federal law purposes.
This case too has experienced obstacles to its progress and from the same basic source as those in the Proposition 8 case – the failure of the named defendants to actually defend the law. This time, the Department of Justice put up a grudging defense after complaints about a more full-throated defense of DOMA was initially offered. Then, the Attorney General announced that the Administration had decided to abandon its defense of DOMA entirely. This might have thrown the case but for the intervention of Congress, through the Bipartisan Legal Advisory Group, which is now defending  DOMA on appeal and in subsequent challenges brought by other advocacy groups.
The postulated race to the Supreme Court now looks like an obstacle course in which the competitors may not even want to finish.
Perhaps the emergence of strong defenders of the challenged laws has made the assurance of victory less certain and the possibility of creating (what they would consider negative) national precedent more worrisome to activists. It would not be surprising if they were to conclude that preserving the extremely favorable district court decisions secured so far is all that could be hoped.
Now that a real defense of marriage is being offered in these cases, however, that outcome might no longer be possible and the Court may get a chance to weigh in after all. If it does so with both sides being adequately represented it will be a victory for the rule of law.
It is worth pausing, though, and thinking about the alternative. Not because it is likely to occur but because it was the intended outcome of many of the litigants in the case.
 That alternative was to have a constitutional challenge to the legal recognition of the social institution of marriage brought by highly motivated and well-financed opponents with the collusion of the titular defendants who would offer none or only a pro forma defense. Thus would the voters of California and the taxpayers of the United States be deprived of a say in this most fundamental legal matter.
It worked in state courts in Iowa, California, and Connecticut. In the former, the attorney general did not bother to defend the state’s marriage law. In the latter two instances, the attorney generals’ defense was hardly robust and the failure was noted and relied on by the courts in ruling for a constitutional right to same-sex marriage.
This amounts, of course, to de facto executive nullification of the laws. Attractive to litigants, it would be a disaster for our legal system. In an adversarial system, taking a dive can amount to making law. Where the executive has not been expressly granted that authority, its exercise by that branch is illegitimate. But having seen in state courts that it may work, the temptation to overreach may be overwhelming. That temptation cannot be entertained and certainly not rewarded.
As important as marriage is, and it is foundational, it’s not the only thing at stake. If we lose not only marriage but also sustain a grievous injury to limited government in the process, that would be a double tragedy.
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