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proposition 8 falls ... for the moment

February 7, 2012

A U.S. appeals court rules Prop. 8 unconstitutional (sfgate.com)

(02-07) 10:13 PST SAN FRANCISCO -- A federal appeals court declared California's ban on same-sex marriage unconstitutional today, saying a state can't revoke gay rights solely because a majority of its voters disapprove of homosexuality.

In a 2-1 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said Proposition 8's limitations on access to marriage took rights away from a vulnerable minority without benefiting parents, children or the marital institution.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples," said Judge Stephen Reinhardt in the majority opinion.

"The Constitution simply does not allow for laws of this sort."

Prop. 8, passed in November 2008, declared marriage to be the union of a man and a woman. It repealed a May 2008 state Supreme Court ruling that had legalized same-sex marriage in California.

The ban remains in effect while the case proceeds toward the U.S. Supreme Court....

History of the case from the 9th Circuit website. The site is very overloaded at the moment, so you might want to wait a bit.

It's going to be really fascinating to see what happens from here. Project Marriage has already said that they'll appeal this directly to the US Supreme Court and skip appealing to the full 9th Circuit (this case was decided by a randomly selected three judge panel). And since the 9th maintained the stay in place, they don't need to make a separate request for that.

I'm really curious to see what the Supreme Court does with this case. Given the choice, I suspect they'd decide that the issue of standing was incorrectly decided and punt this on those grounds (technically, reverse and remand, but doing so on that issue effectively kicks the case out of court) -- their own decisions on that issue are generally pretty clear and in direct opposition to what the 9th decided -- but that's probably not going to be an issue that they get presented with, and I don't believe the issue on standing was separately appealed when it was decided.

The 9th decided this case on such specifically narrow grounds that if the Supreme Court declines this case, the decision will apply only to California, and not to the other states in the Circuit. I suspect that dramatically increases the chances of this case never getting granted Supreme Court review. That said, you only need four votes to grant review, and I think it probably has that. And it may well be that the current members of the Court want to be DONE with this issue ... though to do so, they'd have to considerably broaden the scope of the decision, which the two-justice majority went to some strenuous efforts to restrict in a way that only applies to California.

Given the current configuration of the Supreme Court, it would likely fall out either 5-4 or 6-3 in favor of allowing gay marriage, given current membership and the Court's previous decision in Lawrence v. Texas. Of the dissenting justices in that case, Scalia and Thomas remain, with Rehnquist more or less ideologically replaced by Roberts. The interesting thing is that of the majority, three justices are now gone: O'Connor, Souter and Stevens, replaced by Kagan, Sotomayor and Alito. Alito would almost certainly align with Scalia, Thomas and Roberts, making a reasonably certain four-judge dissent. (That said, Scalia might well vote for allowing gay marriage, on the grounds that he warned the Court that they would wind up having to make this decision after having decided Lawrence the way they did, and you cannot consistently decide that the Constitution allows gays the right to live their lives unprosecuted and then decide that just because you are willing to allow them to have sex without being arrested for it, you're not willing to allow them to be married. He does like being a gadfly, occasionally, and he is allegedly very fond of stare decisis, when it falls out his way--though this one doesn't. But I digress.)

Anyway. Assume you have a known four justice block of Roberts, Scalia, Thomas and Alito against broadening the decision to allow gay marriage throughout the land. The remaining justices are Kennedy, Kagan, Sotomayor, Ginsburg and Breyer. The decision is assumed to rest on what Kennedy decides to do. (I think it's probably safe to assume that Kagan, Ginsburg and Breyer would vote to strike down Prop. 8 on broader grounds and to allow gay marriage throughout the land. The few decisions that Sotomayor has had to make in this area prior to her Court experience lead one to think that she would probably support this decision, but also support the way in which it has been restricted so that it only applies to California.) It's difficult to imagine the author of Lawrence v. Texas voting to decide that marriage is so different in kind from everything else involved in that decision that he could sustain voting to refuse to allow marriage. It is beyond logically inconsistent, as Scalia went to some pain to point out in his furious dissent in that case.

Thing is, though, if the Court decides that they're not ready for this issue, but that they have no objection to striking down Prop. 8 in a way that's consistent both with Romer v. Evans and with Lawrence v. Texas, all they have to do is decline the case. Frankly, that really does seem the most likely result to me. If they take up the case, it strikes me as a signal that they're likely to overturn the decision. I'm not sure how they can, consistent with past cases, without explicitly overruling both Romer and Lawrence -- and I don't think they have the votes for that. (If they agree with the decision and its result, they could also accept the case, then turn around and issue a relatively quick per curiam unsigned decision confirming the judgement and explicitly limiting its effect to California. That said, they tend to issue per curiam decisions in cases only when the underlying issues have been clearly decided, which is not the case here.)

What I think is really going to be interesting, though, is what happens in Washington state after this. It seems likely that the Washington state legislature and governor are going to sign laws into existence that allow gays to marry in that state in the extremely near future. The Washington state branch of Project Marriage has already said that they plan to get the signatures to put the issue on the next ballot, and barring major disaster, they shouldn't have problems getting enough people to sign. And if it gets onto the ballot, it will pass, probably by a broader majority than Prop 8 passed. (I know, I know, there are all sorts of people out there saying that Washington is too liberal, too broad-minded a place for that. Those people ignore the fact that a really substantial chunk of Washington state is politically a bit more like neighboring Idaho than it is like crunchy-granola Seattle. Those people ignore the fact that marriage remains the one and only religious sacrament granted official recognition by the state, and if you believe for religious reasons that gays AREN'T people, too, you don't want the one part of your religion that the state acknowledges contaminated by the state saying, "No, really, gay people ARE people and they have the same rights as you, so shut the hell up already." The fascinating thing is going to be that Washington state will be on a parallel track with California, and assuming the Court either declines the case or upholds the decision, that puts Washington in exactly the same situation. They've already recognized all sorts of nondiscrimation rights in employment, housing and other areas, so they have no legal constitutional grounds for rejecting gay marriage except as an official way of saying, "You are icky and we don't like you!" Which is not allowable.

But we shall see what we shall see. We continue to live in interesting times, we do.

Posted by iain at February 07, 2012 01:37 PM

 

 

 

 

 

 

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