The Prop. 8 saga may finally be entering its final chapter. Proponents of the measure that took away the right of gays and lesbians to marry in California filed a petition in the U.S. Supreme Court July 31 requesting that the high court review the Ninth Circuit’s recent decision holding Prop. 8 unconstitutional.
To recap, in May 2008, the California Supreme Court struck down California’s then-statutory prohibition against same-sex marriage on state constitutional grounds. Full marriage equality took effect the next month. But in November 2008, California voters approved Prop. 8, which wrote the no-same-sex marriage prohibition into the California constitution.
Litigation challenging Prop. 8’s validity promptly ensued. In June 2009, the California high court upheld the measure, but also held valid all marriages entered into during the several months between its May 2008 decision and the November election.
Enter legal icons Ted Olson and David Boies. Olson, U.S. Solicitor General under President George W. Bush, and Boies, a nationally prominent liberal attorney, had faced off against each other in the U.S. Supreme Court’s notorious Bush v. Gore decision that essentially decided the 2000 presidential election. But in May 2009, they joined forces and filed a lawsuit in the federal district court in San Francisco challenging Prop. 8 under the due process and equal protection clauses of the 14th Amendment to the U.S. Constitution.
This case’s commencement touched off much wailing and gnashing of teeth among many LGBT activists because it violated the generally accepted canon that a federal challenge to marriage discrimination would be premature, and doomed, given the current conservative-leaning U.S. Supreme Court. But Olson and Boies were not deterred.
In August 2010, after an extensive trial during which many experts testified and much documentary evidence was taken, Judge Vaughn Walker, himself gay, issued a decision holding Prop. 8 invalid under the 14th Amendment. He stayed his ruling pending appeal.
A year and a half was then consumed in legal skirmishing over whether Prop. 8’s proponents had standing, in other words, the legal right to defend the measure on appeal, given that both then-Attorney General Jerry Brown and Republican Gov. Arnold Schwarzenegger had declined to do so. Ultimately it was decided that the proponents did have standing, but this did them little immediate good because in February 2012 a three-judge Ninth Circuit panel upheld Judge Walker’s ruling, 2-1.
The proponents then asked for en banc review by a larger Ninth Circuit panel, but this was denied in June 2012.
If the U.S. Supreme Court refuses to take the case, then Prop. 8 will have breathed its last and same-sex marriage will become legal again in California. If the court agrees to hear the case, there will be another round of briefing, then oral arguments and ultimately a decision, presumably sometime next year.
This is where the plot thickens a bit, mostly because of the tack the Ninth Circuit took in striking Prop. 8 down. The Ninth Circuit did not recognize a broad-based federal constitutional right to same-sex marriage. Instead, it based its ruling largely on a 1996 U.S. Supreme Court decision, Romer v. Evans, in which Justice Anthony Kennedy, writing for a 6-3 majority, had struck down an amendment to Colorado’s Constitution voters had approved that forbade any governmental body in that state from recognizing LGBT people as a “protected class.” The gist of Kennedy’s reasoning was that once a state grants a group of people certain rights, those rights cannot be taken away by simple majority vote.
The Ninth Circuit likened the Prop. 8 situation to that in Romer because the California Supreme Court had granted gays and lesbians the right to marry, and then the voters had eliminated that right at the ballot box.
If the U.S. Supreme Court accepts this limited, Romer-based formulation of the issue, then whichever way it rules, only California will be affected.
In their petition for review, however, the Prop. 8 proponents frame the issue more broadly—as whether the California Constitution’s definition of marriage as between one man and one woman violates the federal Equal Protection clause. An affirmative answer to this question would instantly legalize same-sex marriage nationwide, wiping out all contrary state provisions, whether statutory or constitutional.
A negative answer would validate Prop. 8, and along with it all other similar state-level same-sex marriage prohibitions, as a matter of federal constitutional law. Such a holding would not, however, invalidate any state law permitting same-sex marriage. In other words, such a ruling would say that the federal Constitution permits states to ban same-sex marriage, but not that it requires them to do so.
Even so, were the court to go down this road, it would be a huge setback for marriage equality in the U.S. because, if history is any guide, it would likely be years, if not decades, before the court would be willing to reverse itself. This is the result LGBT activists feared when Boies and Olson filed their suit in San Francisco—the prospect of locking in marriage discrimination for another generation, or maybe more.
Plaintiffs, the gay couples on whose behalf the suit was originally filed, will file an opposition to the Prop. 8 proponents’ petition later this month, urging the court not to hear the case.
Some LGBT activists have expressed concern that Olson and Boies are opposing U.S. Supreme Court review, seemingly taking the view that the whole point of the federal challenge was to get a ruling from the high court. This view, however, conflates an attorney’s fundamental, primary duty to his client with larger societal concerns that might surround a case.
“Our position is that we won at the Ninth Circuit and ... we want our plaintiffs to get married and at this point, if the Ninth Circuit is affirmed, that’s exactly what’s going to happen, so we are definitely going to urge the court to decline review and to let our clients get married,” Enrique Monagas, an attorney at Olson’s firm, Gibson Dunn, said in a telephone interview with Frontiers. “At the same time,” Monagas added, “we recognize that the case presents exceedingly important constitutional issues, and that the Supreme Court is likely to take a close look at the petition that was filed by the proponents, so we’re ready for whatever happens.”
Asked whether he thought the Supreme Court would take the case, Monagas said, “I think that the Ninth Circuit opinion was sound, and it correctly applies the law as defined by the Supreme Court. It applies Romer, and Romer seems to control on this issue. If you look at the law, there isn’t necessarily a reason for the Supreme Court to get involved and also this particular issue hasn’t appeared yet in any other circuit, so if we’re looking at this in a traditional way, if this was an ordinary case, it wouldn’t necessarily make sense for the Supreme Court to take this case. But this is not an ordinary case, and the Supreme Court is acutely aware of this case and I think is going to give it a close look, so I think it’s impossible for anyone to say which way it’s going to go.”
At least two other marriage equality cases are now working their way through the federal court system. Earlier this month, U.S. District Judge Alan Kay, sitting in Honolulu, Hawaii, dismissed an action challenging that state’s gay marriage ban on constitutional grounds, UPI reported Aug. 9.
“If the traditional institution of marriage is to be restructured, as sought by plaintiffs,” Kay wrote, “it should be done by a democratically elected legislature or people through a constitutional amendment, not through judicial legislation that would inappropriately preempt democratic deliberation regarding whether or not to authorize same-sex marriage.”
Hawaii is in the Ninth Circuit, so, if the case is appealed, it is not clear how Judge Kay’s ruling would stack up against the Prop. 8 decision.
The federal district court sitting in Las Vegas heard arguments Aug. 10 in a case challenging the constitutionality of that state’s domestic partnership law under the federal Equal Protection clause on the ground that, while the law affords gays and lesbians many of the rights of marriage, it denies them the title.
As Jacob Combs of prop8trialtracker.com points out in an Aug. 10 piece, a refusal by the U.S. Supreme Court to hear the Prop. 8 case would be an enormously positive result for the LGBT side in that it would reinstate marriage equality in the nation’s most populous state, but it would leave open the issue of whether the U.S. Constitution guarantees the right to same-sex marriage. The Nevada case might ultimately be the one that places that fundamental issue squarely before the high court.
Finally, at the state level, a New Jersey superior court judge in February reinstated a previously dismissed federal equal protection claim in a case challenging the Garden State’s gay marriage prohibition. The New Jersey legislature passed a marriage equality bill earlier this year, but Republican Gov. Chris Christie vetoed it, saying the issue should be put to voters.
The Supreme Court could consider whether or not to take the Prop. 8 case as early as its first conference of the new term, in late September, Monagas said, adding that he would expect some action on the proponents’ petition by sometime in November at the latest.