Box Turtle Bulletin

Prop 8 to be heard by SCOTUS

The Supreme Court of the United States has granted a writ of certiorari to the appellants of Hollingsworth v. Perry, the Proposition 8 case.

On May 15, 2008, the California Supreme Court found that denying same-sex couples equal access to marriage recognition was a violation of the California Constitution. Chief Justice Ronald George wrote a stirring opinion which was inspired, he told reporters, by recollections from a childhood trip through the South and the “No Negro” signs he saw there.

At 5 pm on June 16, 2008, marriage licenses became available to same-sex couples. Marriage was legal in California.

However, an initiative had been circulated and had already qualified for the ballot. And on November 4, 2008, 52.2% of California voters chose to support Proposition 8 and thus cease the issuance of marriage licenses to same-sex couples. This unexpected result led to protests across the globe.

Supporters of equality went back to the California Supreme Court to argue that the proposition was improper under several different theories. The Court did not accept the logic.

But on May 23, 2009, three days before the California Supreme Court found Prop 8 to be valid, the newly created American Foundation for Equal Rights sued in federal court, asserting that Proposition 8 runs counter to protections granted by the US Constitution. And the attorney team behind the challenge was Ted Olson and David Boies, the two attorneys who had argued both sides of the election result dispute between George W Bush and Al Gore.

This federal judge assigned to the case, Judge Vaughn Walker, did something unusual; he ordered that a trial of fact would occur. This meant that attorneys could not simply come into the courtroom and make whatever claims they chose; rather, they would need to provide evidence for their assertions.

The lead plaintiffs were Kristin Perry and Sandra Steir and the lead defendant was Governor Arnold Schwarzenegger (whose defense consisted of “here, your honor”), so the case became Perry v. Schwarzenegger.

Because the Governor and the California Attorney General (currently Governor) Jerry Brown offered no argument in favor of discrimination, supporters of the proposition were granted standing to defend the law.

The case began in January, 2010. After a lengthy trial in which the proponents pulled all but a few witnesses (David Blankenhorn was virtually the only person on the stand for the proponents) and in which the motivations of the supporters of discrimination was the topic of newspapers and television news coverage, on August 4, Judge Walker issued a decision.

An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

At this point the state of California, through its Governor and Attorney General, accepted the ruling of the court. And that would have been that, but the proponents of Prop 8 demanded that the case be appealed. And the Ninth Circuit Court of Appeals ruled that the proponents could have standing to appeal the decision of Judge Walker.

The decision was stayed pending the decision of the Ninth Circuit Court of Appeals.

In December 2011, the Ninth Circuit hear argument about the constitutionality of Proposition 8. And on February 7th of this year, the Ninth Circuit found that indeed Proposition 8 violated the US Contitution, however on a narrower position. The found that having once granted marriage rights equally, a state cannot choose a single demographic from which to withdraw those rights. The left open the bigger picture of whether marriage rights, in and of themselves, cannot be subject to discrimination based on animus.

Again the proponent of discrimination appealed and again the decision was stayed.

Today, the Supreme Court of the United States has announced that it will hear Hollingsworth v. Perry (the current name of the case, reflecting the challengers – headed by Hollingsworth).

FRIDAY, DECEMBER 7, 2012
CERTIORARI GRANTED
12-144
HOLLINGSWORTH, DENNIS, ET AL. V. PERRY, KRISTIN M., ET AL.
The petition for a writ of certiorari is granted. In addition to the question presented by the petition, the parties are directed to brief and argue the following question: Whether petitioners have standing under Article III, §2 of the Constitution in this case.

Many pundits expected a different answer. We thought that the court would allow the ruling of the Ninth Circuit to stand, thus allowing marriage under the unique circumstances in California (rights revoked) and avoid the question of marriage equality until public opinion had solidified.

And that may still be their decision. By questioning standing, they may be signaling that they will find that the Ninth Circuit hearing was not valid and that they have no path through which to even hear the challenge to Judge Walker’s ruling. (If no one other than legally elected representatives of the people had the right to appeal, then there was no appeal).

Argument before the court will be given next year and by June 2013 it is expected that the fate of Proposition 8 will be resolved.

Supreme Court Silent On Marriage Cases (Updated)

The U.S. Supreme Court issued its Orders this morning, with none of the marriage-related cases making the list. This likely means that at least some of those cases will be scheduled for another Conference on Friday morning. It is not unusual for the Court to require several Conferences before deciding whether to take a case. The delay for some of the cases — the Prop 8 appeal could be one candidate — could also mean that the court has denied certiorari for one or more of the cases and is awaiting a dissent from one of the justices.

Update:  Hollingsworth v. Perry (the Prop 8 case), Windsor v US, US vs Windsor, BLAG v Gill, HHS v Massachusetts, OPM v Golinskey, Pedersen v OPM, OPM v Pedersen, (the DOMA cases) and Brewer v Diaz (the Arizona domestic partnership benefits case) have all been moved to the December 7 conference according to their respective docket pages. (Note: Some of the DOMA cases have two dockets because representatives from both sides have appealed to the Supreme Court.) Chris Geidner says that if they don’t make up their minds on December 7, the next scheduled Conference is January 4.

Update: Lambda Legal’s Jon W. Davidson explains the complexity facing the Supreme Court, with each case bringing with it its own unique set of arguments and prcedural questions:

Justice Kagan needs to decide whether to recuse herself from GLAD’s Gill v. OPM case. The ACLU’s Windsor v. United States case involves the additional wrinkle of how New York treats marriages entered in Canada. Lambda Legal’s Golinski v. OPM case, GLAD’s Pedersen v. OPM case, and Windsor, all came to the Supreme Court in an unusual way—with requests for review having been filed before decisions from the intermediate appellate courts were issued. And there have been questions raised about the right of various parties to ask for Supreme Court review because of who the party asking is or because that party won below.

The Supreme Court has to decide not only which challenge to DOMA to hear, but also whether to hear the Perry or Diaz cases now, or wait until after a DOMA case is decided. Although the questions in these two cases are different from the DOMA challenges, a decision in a DOMA case that laws that discriminate based on sexual orientation should be given heightened scrutiny by the courts and presumed unconstitutional could make the Perry and Diaz cases easier to decide, and the Court might choose to hold one or both of those cases for that reason. If Perry is to be considered now, the justices may direct the parties to brief only the narrow ground decided by the Ninth Circuit that involves the unusual circumstances of California’s marriage ban or broader grounds as well, in addition to the question of whether or not the proponents of Prop 8 have the right to appeal. In Diaz, the Court needs to consider whether to get involved at this point (wading in on whether a preliminary injunction was properly issued keeping insurance coverage in place while the case proceeds), when the case is not yet fully resolved at the trial court. 

“The Most Significant Cases These 9 Justice Have Ever Considered, And Probably Will Ever Decide”

That’s according to SCOTUSblog’s publisher Tom Goldstein:

At their Conference today, the Justices will consider petitions raising federal constitutional issues related to same-sex marriage.  These are the most significant cases these nine Justices have ever considered, and probably that they will ever decide.

I have never before seen cases that I believed would be discussed two hundred years from now.  Bush v. Gore and Obamacare were relative pipsqueaks.  The government’s assertion of the power to prohibit a loving couple to marry, or to refuse to recognize such a marriage, is profound.  So is the opposite claim that five Justices can read the federal Constitution to strip the people of the power to enact the laws governing such a foundational social institution.

While the cases are historic, the justices are being called upon to judge them today:

Our country and societies around the world will read the Justices’ decision(s) not principally as a legal document but instead as a statement by a wise body about whether same-sex marriages are morally right or wrong.  The issues are that profound and fraught; they in a sense seem to transcend “law.”  Given the inevitability of same-sex marriage, if the Court rules against those claiming a right to have such unions recognized, it will later be judged to be “on the wrong side of history.”

But the verdict of history cannot decide the legal questions presented by these cases.  The cases arrive today, in this moment, before our cultural transition has completed.  In a sense, it is a shame that there is such pressure to hear the cases now; the judgment for the rest of the nation’s history would certainly favor these claims.  But if they do decide to grant review, the Justices cannot merely choose to embrace the past or the future.  They will have to make a judgment now.

You’ve got to read the whole thing. He’s right: this is history before our eyes, whether it winds up being Dred Scott or Loving v. Virginia.

Calendar shift for DOMA and Prop 8

The Supreme Court has announced a shift in their calendar. They were scheduled to meet on November 20 to decide whether to hear the challenges to Proposition 8 and the Defense of Marriage Act. Now they will conference on Friday, November 30 and likely announce their decision on Monday, December 3.

No Supreme Court Action on Prop 8, DOMA Cases; NOM’s Finance Disclosure Appeal Denied (Again)

The orders page is out for today, with no mention of the Prop 8 case (Hollingsworth v. Perry) or the Defense of Marriage Act Challenge (Windsor v. US). Which means that the court has neither denied nor granted cert to review the cases. There is increasing speculation that the court may not take action on these cases until November when at least three more cases challenging DOMA will be available for review by the Justices.

There are two other LGBT related cases before the court. Diaz v. Brewer, challenging Arizona Gov. Jan Brewer’s attempt to withdraw domestic partner benefits from state employees. The court has taken no action on that case yet

But in National Organization for Marriage v. McKee, in which NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws, the supreme court denied NOM’s request for certiorari. The Supreme Court refused to hear an earlier similar challenge from NOM in February.

Supreme Court Declines Prop 8, DOMA Cases For Now

The U.S. Supreme Court has issued its Orders List (PDF: 136KB/10 pages) following yesterday’s conference session in which it was scheduled to consider whether to hear four LGBT-related cases. Today’s Order list indicates that the Supreme Court has agreed to accept six pending case, but the appeal of Hollingsworth v. Perry — the new name for Perry v. Brown, which itself was previously Perry v. Schwarzenegger, challenging the constitutionality of California’s Proposition 8 — was not on the list.

It’s not clear yet though that this means that the Prop 8 case was rejected by the court. We won’t learn that until next Monday, when the Supreme Court will issue a list of cases it has decided not to hear this term. If Hollingsworth v. Perry is on that list, then the Ninth Circuit Court of Appeals’ decision striking down Proposition 8 as unconstitutional will stand and California’s same-sex couples will have their marriage rights restored. But if Hollingsworth v. Perry is not on that list, then it means that the Supreme Court is still weighing whether to accept the case. It takes four justices to agree on hearing a case before it is accepted by the court.

The court also held off accepting the appeal of Windsor v. USA, which challenges the constitutionality of Section 3 of the Defense of Marriage Act. This case was brought by the American Civil Liberties Union on behal of Edie Windsor, who is required to pay $363,000 in federal estate taxes following the death of her legally-wedded wife in 2007. If she had been in an opposite-sex marriage, her estate tax bill would have been zero. Four other DOMA challenges are making their way through the Appeals courts, and the U.S. Department of Justice has asked the Supreme Court to hear three of those cases along with Windsor for a more comprehensive look at DOMA’s constitutionality.

The court has also, so far, declined to accept two other LGBT-related cases. In Diaz v. Brewer, the Ninth Circuit Court of Appeals decided that Arizona’s Republican Gov. Jan Brewer cannot withdraw domestic parner benefits from state employees without violating the Constitution’s Equal Protection clause. And in National Organization for Marriage v. McKee, NOM is again trying to get the Supreme Court’s attention in its efforts to circumvent Maine’s finance disclosure laws. The Supreme Court refused to hear an earlier challenge from NOM in February.

It’s official: we won Prop 8

From the amended order closing Perry v. Schwarzenegger:

“…judgment is hereby entered in favor of: (1) Plaintiffs Kristin M. Perry; Sandra B. Stier; Paul T. Katami; and Jeffrey J. Zarrillo; and (2) Plaintiff-Intervenor City and County of San Francisco and against: (1) Defendants Arnold Schwarzenegger; Edmund G. Brown, Jr.; Mark B. Horton; Linette Scott; Patrick O’Connell; Dean C. Logan; Kamala D. Harris; and Howard Backer; and (2) Defendant-Intervenors Dennis Hollingsworth; Gail J. Knight; Martin F. Gutierrez; Hak-Shing William Tam; Mark A. Jansson; and ProtectMarriage.com.”

What does this mean? Nothing really. The Supreme Court still has to weigh in on whether or not to hear the challenge and, if so, whether to uphold the decision.

But it’s awfully nice to read, anyway.

Prop 8’s key witness endorses marriage equality

I’ve always had compassion for David Blankenhorn. He’s a man with strong convictions and good intentions who struggled with two contradictory beliefs:

1. gay people are entitled to equality and a society that fully includes gay people is made better by it

2. same-sex marriage would be a negative contributor to heterosexual marriage, and that heterosexual marriage is essential to a healthy society and is in the best interest of children

And it is the second belief that placed Blankenhorn as the primary (virtually only) witness in defense of Proposition 8, California’s ban on same-sex marriage.

It can be tempting to write off people who do not support equality as being motivated by hate or intellectually incapacitated.

But Blankenhorn’s arguments are not irrational. These are beliefs that are held by many intelligent people who are not motivated by hatred or malice, just long-held unproven presumption. Having “always” believed this to be true, they are prejudiced in their approach to the marriage issue and filter arguments in its favor through the presumptions of harm.

But this does not mean that they are happy with their conclusions. Blankenhorn was not at all happy that he hurt gay people (and even less happy that many people assumed that he wished to) nor was he overjoyed to be politically lumped in with people with whom he shared no other positions.

And I suspect that he discovered that while the anti-gay collective talks about family and children in their advertisements, in reality he was the only one who really cared about the children. He actually wanted to “protect marriage” so that “children could have a mother and a father” while his allies (of a sort) wanted to rail against the Homosexual Agenda.

Well, he’s had enough. So Blankenhorn is, somewhat grudgingly, reversing course.

He still believes that gay marriage could be a bad thing for marriage, but the anti-gay culture war mentality is even worse. In a NYTimes Op-Ed:

I had hoped that the gay marriage debate would be mostly about marriage’s relationship to parenthood. But it hasn’t been. Or perhaps it’s fairer to say that I and others have made that argument, and that we have largely failed to persuade. In the mind of today’s public, gay marriage is almost entirely about accepting lesbians and gay men as equal citizens. And to my deep regret, much of the opposition to gay marriage seems to stem, at least in part, from an underlying anti-gay animus. To me, a Southerner by birth whose formative moral experience was the civil rights movement, this fact is profoundly disturbing.

I had also hoped that debating gay marriage might help to lead heterosexual America to a broader and more positive recommitment to marriage as an institution. But it hasn’t happened. With each passing year, we see higher and higher levels of unwed childbearing, nonmarital cohabitation and family fragmentation among heterosexuals. Perhaps some of this can be attributed to the reconceptualization of marriage as a private ordering that is so central to the idea of gay marriage. But either way, if fighting gay marriage was going to help marriage overall, I think we’d have seen some signs of it by now.

So my intention is to try something new. Instead of fighting gay marriage, I’d like to help build new coalitions bringing together gays who want to strengthen marriage with straight people who want to do the same. For example, once we accept gay marriage, might we also agree that getting married before having children is a vital cultural value that all of us should do more to embrace? Can we agree that, for all lovers who want their love to last, marriage is preferable to cohabitation? Can we discuss whether both gays and straight people should think twice before denying children born through artificial reproductive technology the right to know and be known by their biological parents?

I welcome his support on the issue of marriage.

I am not unequivocal in my endorsement of this new position. I’m troubled by the implications of to gay couples of assigning rights based on from whom the DNA strains originated. But I can accept that there are valid arguments that can be made for this position and many same-sex couples not only accommodate biological contributors but insist upon their being a part of the child’s life.

And I am happy that David is evolving to a place where his contradictory views are less contradictory. His is a process that we will continue to see on a grander scale. I hope we are gracious when it happens to people we know.

No en banc hearing; Prop 8 case’s next stop: Supreme Court

As many predicted, the full Ninth Circuit Court of Appeals has denied an en banc hearing to the Proponents of Proposition 8, California’s ban on same-sex marriage. They continued the stay on the decision for 90 days so that the Proponents may appeal to the Supreme Court of the United States for a writ of certiorari. Jim’s excellent commentary lays out the timing of the next steps.

The most interesting aspect of today’s filing was not the announcement that en banc was denied. Rather, the most fascinating aspect was in the dissent to the decision and the response to the dissent.

Dissent:

Judges O’Scannlain, Bybee and Bea, the most conservative judges on the circuit bench, wrote a terse objection to the decision not to grant en banc. Both what was included and what was not included are odd selections and will have pundits pontificating. They chose to quote President Obama’s call for the conversation to coninue in a respectful way (they think it disrespectful not to have en banc hearing). Yet the President’s views have no bearing on constitutionality, nor are they directors for the tenor or tone of judicial determination.

What was not included was much discussion of the merits of the appeal or the legal rulings. They declare that the majority’s reading of Romer “would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it”, but still stop short of actually stating that the ruling was incorrect.

Instead, the three paragraph dissent concludes with an endorsement of “Judge N.R. Smith’s excellent dissenting opinion in this momentous case.” But Judge N.R. Smith’s “excellent dissenting opinion” was anything but forceful. In short it could be summarized as “well, it’s possible that this wasn’t entirely based in animus and I’m just not yet fully convinced that there isn’t some possible legitimate reason for this discrimination, yet.”

Also interesting is that the ruling notes that “Judge N.R. Smith would grant the petition” but Smith did not join OB&B’s dissent.

Response:

In response, Judges Reinhardt and Hawkins – the two justices who upheld Judge Walker’s ruling – reiterated the narrowness of their opinion: “We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid.”

What it means:

The Proponents took a bit of a gamble in asking for en banc. Considering the makeup of the Ninth Circuit, they had almost no chance of having the ruling reversed. In fact, depending on the panel, they could have resulted in an even more lopsided loss.

But what they could have achieved was a stronger dissent. They could have approached the SCOTUS with a scathing and biting dismissal of the court’s crazy, liberal, extremist views. And even without en banc, the dissent given by OB&B could have been a scathing and biting dismissal of the court’s crazy, liberal, extremist views.

They did not get that. They got a indignant objection to not giving the case the benefit of a hearing by the en banc panel (“at least discussing this unparalleled decision as an en banc court”) but as for the case, all detailed objections are limited to Judge Smith’s polite, somewhat reluctant and hesitant suggestion that, well, he’s not convinced. A cynical mind might even believe that the judges in objection would prefer that SCOTUS not give their objections too much mind.

Thus, the en banc attempt was a gamble and a loss for the Proponents. But, all in all, probably not a big loss.

The one thing that they might have preferred not come from the process was Reinhardt and Hawkins’ reminder about the narrowness of the decision. “Oh no,” they said, “this isn’t about the constitutionality of gay marriage bans, but only about the constitutionality of whether they can be banned after they have been granted.”

Going into the certiorari process, the case is situated such that the Supremes have every reason not to hear it and few reasons to do so. It only impacts one state, it only speaks to a very peculiar set of circumstances, and it gives the court the opportunity to delay dealing with the unconstitutionality of restricting civil marriage for an unpopular minority for another few years at least.

It is impossible to predict the actions of the Supreme Court, but I think it at least somewhat likely that SCOTUS will opt not to hear this case.

Ninth Circuit Rejects En Banc Hearing Request for Prop 8

The Ninth Circuit Court of Appeals denied (PDF:94KB/ 7 pages) the request by the Alliance Defense Fund, Proposition 8’s defender of record, for an en banc hearing by an eleven-judge panel of the Ninth Circuit:

A majority of the panel has voted to deny the petition for rehearing en banc. Judge N.R. Smith would grant the petition.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

This means that the Alliance Defense Fund has ninety days to petition the Supreme Court to consider the case. The Supreme Court typically goes into recess in June, which means that it may not decide to grant cert until sometime in October. Four Supreme Court justices must vote to hear the case in order for the Court to grant cert.

Three of the dissenting Ninth Circuit judges issued a stinging dissent from the order refusing an en banc hearing. Their dissent will likely be quoted extensively by NOM and the Family “Research” Council:

O’SCANNLAIN, Circuit Judge, joined by BYBEE and BEA, Circuit Judges, dissenting from the order denying rehearing en banc:

A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”

Today our court has silenced any such respectful conversation. Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012). Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it. We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.

For many of the same reasons discussed in Judge N.R. Smith’s excellent dissenting opinion in this momentous case, I respectfully dissent from the failure to grant the petition for rehearing en banc.

That dissent earned this reply from the two judges of the three judge panel which upheld, albeit on much narrow grounds, a lower court’s ruling that Prop 8 was unconstitutional:

REINHARDT and HAWKINS, Circuit Judges, concurring in the denial of rehearing en banc:

We are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion. We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question may be decided in the near future, but if so, it should be in some other case, at some other time.

Will Prop 8 get “en banc” hearing by Ninth Circuit?

Tomorrow the Ninth Circuit Court of Appeals will announce whether it will give an en banc hearing to Perry v. Brown (nee Schwarzenegger), the challenge to California’s Proposition 8.

In February, the Ninth Circuit Court of Appeals released its decision upholding Judge Vaughn Walker’s ruling that Proposition 8 is in violation of the US Constitution. The Appeal was heard and decided by three judges selected at random.

The losing side in an appeal can request that the case be heard “en banc”, or by all of the judges. In the Ninth Circuit, there are too many appellate judges to all hear the case, but a panel of 11 judges would be randomly selected. The Proponents requested an en banc hearing.

The decision whether to hear a case en banc is made by a majority vote of the circuit judges, which in this case requires 13 judges to agree. But if en banc is not granted, a circuit judge can write a dissent to the decision not to hear the case, which can be as useful to the Proponents as if en banc were granted and that judge were a dissenter to a decision. (Thus even if en banc isn’t granted, they may get a stronger dissent than Judge Smith’s vague “well, I’m not exactly completely convinced… yet” dissent.)

Should en banc be granted, the case will be scheduled and heard before the en banc panel. This will be, of course, a considerable delay. But based on the make-up of the court, it is likely that Judge Walker’s ruling will continue to be upheld, perhaps by an even greater percentage.

Should en banc not be granted, the Proponent will request certiorari, or a hearing by the Supreme Court. This is a ways down the road, likely, but this is the big decision. Should certiorari be granted, the question of whether banning some citizens from equal access to civil law based on their orientation is a violation of the US Constitution will be heard by the court of final decision. Should it not be granted, then Proposition 8 would be overturned and marriage would become legal again in California.

But, as the case currently stands, this would apply only to California. Unless, in their denial of certiorari, the court states otherwise. Which they won’t.

Prop 8 Supporters To Petition for En Banc Review

Charles Cooper, the lead attorney for the proponents of Proposition 8, told Metro Weekly that they intend to file a petition before today’s end-of-the-day deadline asking that the Ninth Circuit Court of Appeals reviews the decision handed down by a three-judge panel upholding a lower court’s ruling that Prop 8 is unconstitutional. Once the filing is made, the entire 20-member court will vote on whether to hold an en banc review. If they approve the petition, then Judge Alex Kozinski, the circuit’s chief judge, and 10 randomly selected judges from the circuit will hear the en banc appeal. That will involve more briefs, more hearings and more time, virtually guaranteeing that the case won’t reach the U.S. Supreme Court this year.

They’ve Always Held That View?

A Mormon family with two wives and nine children, about 1889

The LDS Church has responded to the Prop 8 ruling:

The Church of Jesus Christ of Latter-day Saints regrets today’s decision. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. [Emphasis mine.]

Ahem.

Presidential Candidates React

Mitt Romney does it old school, via a press relase:

“Today, unelected judges cast aside the will of the people of California who voted to protect traditional marriage. This decision does not end this fight, and I expect it to go to the Supreme Court. That prospect underscores the vital importance of this election and the movement to preserve our values. I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices.”

Newt Gingrich, via Twitter:

“Court of Appeals overturning CA’s Prop 8 another example of an out of control judiciary. Let’s end judicial supremacy”

Rick Santorum, also via Twitter:

“7M Californians had their rights stripped away today by activist 9th Circuit judges. As president I will work to protect marriage.”

Ron Paul:

“…“

Press Secretary Jay Carney on behalf of President Obama:

“I’m not going to comment on litigation particularly as here where we are not party to it, but the president’s positions on these issues writ large are well known, and he’s long opposed divisive and discriminatory efforts to deny right and benefits to same-sex couples.”

On the flip side, former GOP Presidentical candidate, current Libertarian Party Presidentical candidate and former New Mexico Gov. Gary Johnson tweeted:

“Prop 8 – Sometimes a Court gets it right”

Ninth Circuit decision: the basics

Here are the key points from the decision of the Ninth Circuit Court of Appeals upholding Judge Walker’s finding that Proposition 8 violates the Fourteenth Amendment of the US Constitution.

Standing and Recusal

Because the State of California, via the state Supreme Court, has found that the Proponents have standing then the Ninth will respect that decision.

Judge Walker had no need to recuse himself simply because he is gay and may at some point wish to marry.

These decisions were unanimous.

Impact on marriages

This is a decision that effects California only. The unique circumstances in the state allowed for a narrow focus.

Marriages do not resume. The stay on the ruling remains while the Proponents appeal this decision on up the ladder.

The scope

The decision does not discuss whether denying of marriage violates the Constitution, but only whether taking away marriage is a violation. It notes that “Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question” but does not seek to answer that question.

The court did not look beyond a ‘rational basis’ to determine their decision. No protected class status was considered.

Proposition 8 violated the Equal Protection Clause of the US Contitution.

What the case is about

The only impact of Proposition 8 was to carve out a narrow exception to the constitutional rights of gay people, restricting the designation of the word “marriage”. All sides agree that there is a unique meaning and special value to the designation “marriage”.

The Ninth focused on that very limited exclusion – the nomenclature – not to minimize the impact of Prop 8 but to understand it’s very significant value: “That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults.” The state-enacted incidences of marriage are not it’s defining characteristics; the state applies rules based on marriages but these are only “manifestations of the recognition that the State affords.”

The best line: “Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

The most important statement of what marriage is:

The official, cherished status of ‘marriage’ is distinct from the incidents of marriage, such as those listed in the California Family Code. The incidents are both elements of the institution and manifestations of the recognition that the State affords to those who are in stable and committed lifelong relationships. We allow spouses but not siblings or roommates to file taxes jointly, for example, because we acknowledge the financial interdependence of those who have entered into an “enduring” relationship. The incidents of marriage, standing alone, do not, however, convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.

The logic

There were three arguments presented for establishing the unconstitutionality of Prop 8: 1) Due Process guarantees the fundamental right to marry; 2) excluding same-sex couples but allowing opposite sex couples is a violation of Equal Protections; 3) the Equal Protections Clause protects minority groups from being targeted for the deprivation of existing rights.

The third argument is by far the most narrow. And the Appeals Court held to the principle that if a more narrow decision can resolve the issue, that the broader questions which might apply to more circumstances are left unanswered.

The Ninth found the removal of existing rights to be an important question. “The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”

And this characteristic made it uniquely applicable to the Romer decision (Colorado’s Amendment 2). This commonality is that it need not be a fundamental right that is selectively taken away (non-discrimination policies are not guaranteed by the constitution); it need only be that an existing privilege be curtailed to harm a politically unpopular group. Having enjoyed an equal status, a group cannot be selected for removal of that status.

The court looked at four possible reasons for the state to remove the rights of gay persons to marry: : (1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools.

But here is where the actual impact of Proposition 8 comes into play. In order to be rationally related to the [after the fact created] goals of the Proponents, Proposition 8 would have had to had some impact on the laws relating to those goals. It did not. Thus it simply isn’t rational to think that relegating gay people to a lesser status would accomplish responsible procreation.

And as the circumstances are not about allowing marriage but in taking it back, the question of rational reason changes. It may be possible that the state could believe that granting special rights to heterosexuals might add luster to the institution of marriage and thus further the state’s interest in responsible procreation. But to argue that luster is added to the institution by kicking gays out is merely animus, not rational thought.

Proceeding with caution certainly had no relationship to Prop 8. It was not a cautious consideration of whether marriage equality had merit, but a post-haste removal of rights.

Protecting religious freedom has even less reality as a basis; the objections over religious freedom related to non-discrimination laws – which, incidentally, require that domestic partnerships be given the same consideration as marriage. Similarly, what is taught in schools was not impacted by Prop 8; those are education code issues.

Which only leaves disapproval of gay people as a class as the basis for Prop 8’s passing. Which is something that every one of us knows, regardless of what the lawyers say.

And, as Lawrence notes, laws designed to place gay people on a lesser status are an invitation to subject them to public and private discrimination. Such laws enact nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class. Which is not a legitimate government interest.

Dissent

Judge Randy Smith (Republican, Mormon) agreed on the standing and recusal issue but not on the unconstitutionality of Proposition 8. However, what is most notable in his dissent is that it feels tentative and hesitating and rather than blast the majority for their views, Smith just isn’t ready to agree.

Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest. I must therefore respectfully dissent.

There is not a single sentence that demeans gay people or even suggests that same-sex marriage is in any way an undesirable goal. And he doesn’t put up a fiery defense.

He notes that the circumstances of Proposition 8 are not identical to 1971’s Baker case. He notes that a federal court challenge to the State’s powers to regulate marriage can be appropriate (quoting Loving). And he notes that the question is whether there is any rational foundation for the discrimination.

Interestingly, Smith quotes many of the same passages as the majority. And he seems to agree with many of the terms of the debate: the narrow scope, that animus played a role, that this is a situation of the removal of existing rights. However, he reaches a different conclusion; or, at least, is not brought to the same one.

The question he seeks to answer is

… whether withdrawing from same-sex couples the right to access the designation of marriage, alone, rationally relates to the responsible procreation and optimal parenting rationales.

Smith answers it this way:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.

It doesn’t matter that the assumptions are erroneous, he states, just arguable. He recognizes that the assumptions are based partly in bias, but still gives broad leeway to the presumption of validity.

Smith’s error is, I believe, in applying rules relating to a distinct and measurable body of legislature to a broad nebulous 14 million voter population. They are not the same.

A legislative body may well consider factors such as responsible procreation and the responsibilities of the state. But voters do not consider themselves to be “the state” and pay little attention to its responsibilities. They simply address the culture and their desires to expand or limit their neighbors’ abilities to do things.

To assume that some significant percentage of the voters might have believed that withdrawing from same-sex couples the right to access the designation of marriage would further the interests in promoting responsible procreation and optimal parenting requires a suspension of disbelief that exceeds anything any sci-fi movie promoter might dream of. This is not just unrealistic, but laughably so.

But that is what Smith presents.

In totality, it comes across as, “Well, I see your point, and gosh, but I’m just not sure, guys. Let’s have restraint. Let’s not rock the boat.”

Other interesting items of note

The Ninth confirmed (or noted, perhaps) that because the California voters had passed an amendment to the civil code limiting marriage to one man and one woman, the legislature could not enact equality, thus validating Gov. Schwarzenegger’s position.

They note that prejudice need not be based in animus. It may simply be based in long-standing sincerely held private beliefs. It’s the difference between disapproving of someone and wishing them harm. They concluded that Californians did not enact Proposition 8 out of ill will, simply out of disapproval of gays and lesbians as a class. This is an interesting distinction. It takes the wind out of NOM’s “they call us bigots” claim.

None of them wanted to take on or even discuss the merits of Olson/Boies’ argument that stricter scrutiny is called for in anti-gay discrimination cases.