Prop. 8: Further review opposed (UPDATED)
on Mar 1, 2012 at 5:20 pm
UPDATED 7:20 p.m. This post has been updated with the filing of a second brief opposing en banc review, by the city and county of San Francisco. That brief, too, is linked in the post.
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Seeking to persuade a federal appeals court to avoid any further review of the constitutionality of California’s ban on same-sex marriage, two California gay couples told the Ninth Circuit Court Thursday that it might have to go into broader and more difficult constitutional issues if it did grant rehearing. In a filing sent in two weeks before it was due, the couples who had won their case against “Proposition 8” before a three-judge panel opposed reconsideration by the en banc court.
The document was an attempt to keep intact a fairly modest victory the couples had won last month in a 2-1 panel ruling. In that decision, the Circuit Court majority struck down the voter-approved measure, finding that the measure took away a right to marry that the California Supreme Court had recognized, and did so based solely on hostility to gays and lesbians. The panel majority had relied upon a 1996 Supreme Court ruling, Romer v. Evans, barring states from singling out homosexuals for discriminatory treatment in state laws.
The panel did not decide that gays and lesbians have a constitutional right to get married. It ruled only that, when they once had that right, it could not be taken away as a discriminatory act to show disapproval of their sexual identities.
But, the brief filed Thursday argued, if the en banc Circuit Court were to take on the case now, it might have to confront the claim that the Constitution does guarantee a right to marry without discrimination based on sexual identity. A claim of a right of gays to marry, the new brief said, would be an alternative basis for upholding the District Court judge’s 2010 ruling striking down Proposition 8 — a ruling that the Circuit Court had upheld on a considerably narrower basis.
In addition, the brief said, the en banc appeals court might have to sort out whether discrimination against homosexuals is to be judged by the most rigorous constitutional standard — “strict scrutiny.” The panel decision was based on the far more lenient constitutional standard of “rational basis.” The appeals court, sitting en banc, “would need to decide whether ‘gays and lesbians are the type of minority strict scrutiny was designed to protect,'” the brief said, quoting a remark made by the District judge in nullifying Proposition 8.
The Supreme Court, the brief said, has recognized the right to marry as a constitutional right, and, it noted, the District judge had found that Proposition 8 imposed an unconstitutional burden upon the exercise of that right by same-sex couples.
Finally, the couples’ brief asserted, the Circuit Court reviewing the case en banc might have to probe deeply into the findings of fact that the District judge found as a basis for nullifying Proposition 8 under the Constitution’s guarantees of equal protection and of due process.
All of these points about broader issues seemed obviously designed to suggest that the Circuit Court would be better advised to leave intact the work of the panel, and put off these potentially harder constitutional issues until another day.
Beyond that line of argument, the opposing brief contended that gays and lesbians in California have waited long enough to regain the right to marry that was taken away by Proposition 8. Every day that they are denied that right, the document contended, they experience “the indignity and humiliation of having the state designate their relationships as second-class pairings unworthy of the name ‘marriage.'”
It has been more three years since Proposition 8 took away that right, in November 2008, and nearly three years since the two same-sex couples first challenged the measure’s constitutionality in federal court, the brief said.
Besides asking the Circuit Court to avoid rehearing on the basic issue of Proposition 8’s constitutionality, the two couples also urged the full court not to reconsider the panel ruling that the trial judge, District Judge Vaughn R. Walker, had no legal duty to take himself out of trying the case. The backers of Proposition 8 argued that the entire decision was infected by the judge’s conflict of interest, because he is gay and is involved in a long-term gay relationship that might make him interested personally in marrying his partner.
In a separate brief, the city and county of San Francisco — in the case as another challenger to Proposition 8 — also opposed further review in the Circuit Court. That filing, too, defended the modest scope of the Circuit panel decision, saying it was largely based upon “law and facts peculiar to California.”
With the responses to the rehearing petition now filed, and with no reply allowed under court rules for the backers of Proposition 8, the full Circuit Court can proceed promptly to consider whether to rehear. It will take a majority vote of the Circuit Court’s active judges to grant such reconsideration. If the Court does choose to take a new look at the case, the immediate effect would be to wipe out the Circuit Court panel’s decision and essentially start all over with a full-scale review of Judge Walker’s District Court decision. And the secondary effect would be that there would be further delay, perhaps lasting many months, before the case could go on to the Supreme Court.
If further review is denied, however, the case could move on promptly to the Supreme Court, although very likely not in time for the Justices to take final action during the current Term of Court.
