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Prop. 8: Deciding what to decide


In what the presiding judge called “a fascinating argument,” the Ninth Circuit Court on Monday took up the historic constitutional fight over California’s ban on same-sex marriage, and sent a variety of tentative and somewhat mixed signals.  But if the hints of the two-hour, 19-minute televised argument hold true in a final ruling, the Court might shunt the case temporarily off to a state court for some clarification, or it might move ahead to decide the case itself, but make it as narrow as possible.  The bottom line, though, could be that Proposition 8, one way or the other, may not survive in that Court.

If there was a surprise, it was that the one judge on the three-judge panel known as a conservative, Circuit Judge N. Randy Smith, found a possibly fatal flaw in logic in support of the ban.  What is rational, Judge Smith asked, about a state giving gay and lesbian couples complete equality in the legal rights and benefits that married couples have, including the right to raise children, but then to deny them marriage itself.  The state’s voters, he said, had just opted to omit a single word, “marriage,”  and how is that rational?  He seemed skeptical of the response by Charles Cooper, Proposition 8 lawyer, that “it is a word that is essentially the institution; you cannot separate the two.”

But, however Judge Smith might vote on the constitutionality of the ban, if the panel gets to that, it seemed clear that his two colleagues, Circuit Judges Stephen R. Reinhardt and Michael Daly Hawkins would nullify the ban, provided they could do so without having to write a sweeping opinion that established a national constitutional right of gay marriage.  At most, they seemed inclined only to rule that California had first allowed a right to same-sex marriage, then took it away by singling out gays and lesbians for the loss of an existing right — a targeted exclusion that could only have resulted from bias.

But, before the panel ever got to the constitutional question, it would first have to rule that it had the authority to decide it.  Indeed, the first half of the lengthy argument session was taken up with the issue of whether anyone had “standing” to appeal the ruling last summer by U.S. District Judge Vaughn R. Walker striking down Proposition 8.  California’s top officials, the governor and attorney general, refused to defend Proposition 8 and refused to appeal Walker’s decision against the measure, so the issue now is whether anyone could take their place and do so.

Before Monday’s argument, there were two candidates for “standing” to appeal: those who drafted and promoted Proposition 8, and the marriage license-issuing official in Imperial County.  It was clear, after the oral argument, that Imperial County had been all but eliminated as a candidate.  The county’s lawyer, Robert Tyler, had serious difficulty persuading any of the three judges that his main client, the individual county official, a deputy clerk, has anything at stake legally in the fight.

But it is not at all clear, either way, about how Proposition 8’s backers might fare on that issue.  Working in its favor was a suggestion by Judge Reinhardt that there was something questionable about state officials “just tossing in the towel,” if that meant no one else could defend the measure in their absence, with the result, in effect, that state officials could accomplish a scuttling of a voter-approved law that the officials otherwise had no power to nullify.

Thus, Reinhardt suggested that the panel might ask the California Supreme Court to consider whether under state law anybody could stand in for the absent state officials to defend the measure.  One of the lawyer’s for the challengers to Proposition 8, David Boies, said that would be advisable if the panel were uncertain about it.  But he said that, even if the state court ruled that state law permitted a stand-in defender, that would not solve the constitutional problem that backers of the measure or county officials could not prove they would suffer any injury if the ban were struck down.

Boies agreed with a comment by Judge Hawkins that, if the state court did approve a stand-in, Boies would be right back in court making the same argument that no one constitutionally could take on that role when state officials give it up.

As part of the first hour of argument, the judges seemed uncertain about just how far the federal judge’s order against Proposition 8 would reach: in other words, who would be bound by the injunction against enforcing the ban.  Judge Smith wondered, for example, whether the Circuit Court would have any authority to judge the scope of the injunction, if it were to rule that the appeal had to be dismissed for lack of standing.

When the panel turned, in the second hour, to the constitutionality of the same-sex marriage ban, Judge Hawkins began by exploring, with attorney Cooper, just how far a state’s voters could go in adopting a ballot measure that would undo a right that previously existed.  It was soon clear that Hawkins, and the other judges, were keenly interested in the Supreme Court’s 1996 ruling in Romer v. Evans, barring a state constitutional amendment in Colorado taking away existing rights that gays and lesbians previously had in that state.

Quoting the Court’s opinion in the Romer case, about the Constitution’s commitment to equality, Hawkins asked: “Aren’t you flying right in the face of that?”  Cooper said that the Colorado provision was “far, far more sweeping” than what Proposition had sought to do about marriage.

Cooper was ready with a precedent of his own, the Court’s 1982 decision in Crawford v. Los Angeles Board of Education, a ruling that allowed a local school board to cut back on crosstown busing as a means of relieving racial segregation of public schools.  In that case, as in this one, the attorney said, the people of California went to the polls and repudiated a state supreme court ruling with which they disagreed. As long as the response did not directly violate a constitutional right, the Crawford decision allowed it, Cooper said.

Judge Reinhardt conceded that voters could amend their own constitution, but, he said, the key question is “what are you amending?”  If the measure is taking away a right that previously existed, the judge suggested, that would not be open to voters to do.  The problem, the judge said, would arise if a state were “taking away a right for a particular class with a reasonable reason.”  And, he suggested, picking up on Judge Smith’s point, what was reasonable about giving gays and lesbians all the privileges of marriage, as California does, while taking away the title of marriage (which homosexuals had gained in a California Supreme Court ruling overturned by Proposition 8).

Several times, Judge Smith made it clear that he was worried, as he put it, about the rational basis for going as far as California had gone.  While the judge speculated about some reasons that California voters might have, he seemed uncertain that those were strong enough.  The judge even wondered whether a state that had not given any rights to same-sex couples might have a stronger argument for denying marriage rights than Californians had.

One of the lawyers for the same-sex couples who challenged Proposition 8, Theodore B. Olson, was pressed by the judges to deal with the Crawford precedent, suggesting that Cooper had made some headway with that.  But Olson answered with an array of 14 Supreme Court precedents strongly supporting the right to marry as a fundamental right, an individual right.  Proposition 8, he argued, had taken away that right, but only for gays and lesbians, after they had won it from the state Supreme Court.

Judge Reinhardt pressed Olson to say whether the Circuit Court, in order to strike down the marriage ban, had to declare that there was a constitutional right to gay marriage.  “I am trying to find out how far we have to go,” if it were to strike down Proposition 8, the presiding judge said.  “If we have to reach that issue, we hold,” he said, but the Supreme Court, he noted, had cautioned lower courts not to decide more than was necessary. “Are we free to decide anything other than whether repeal [of an existing right] constituted a violation?” Reinhardt asked. Olson attempted, without obvious success, to keep the judge focused on the marriage right as an individual right of privacy, regardless of one’s sexual orientation.

District Judge Walker, in nullifying Proposition 8, had not ruled that gays and lesbians have their own, separate right to marry, but rather had the same right as everyone else who was eligible to get married.  That was the point Olson repeatedly attempted to make, but it was not apparent that Judge Reinhardt saw it that way.   But, in an effort to keep Reinhardt on his side, Olson said the Circuit Court need go no further than the Romer case, and rule that states could not take away an existing one for only a single, targeted class of citizens.

The argument against Proposition 8 concluded with a brief presentation by a lawyer for the city and county of San Francisco, Therese M. Stewart, arguing primarily that the ballot measure was invalid because those who promoted it did so out of a desire to put gays and lesbians “in an inferior status.”  The backers, she said, openly urged support for the measure by saying of homosexuals, “They’re not OK.”  Prejudice, she said, sometimes comes in a form that does not necessarily descend to “hatred.”

The backers’ lawyer, Cooper, finished the argument session with a strong pitch for the Court to be guided by the Supreme Court’s summary ruling in 1972, in the case of Baker v. Nelson, rejecting an earlier claim to marriage for homosexuals.  That decision, Cooper said, is binding on the Circuit Court.  It came, he said, “on the heels of” the Supreme Court’s 1967 ruling in Loving v. Virginia, striking down a law that barred marriage between a man and a woman of different races — a precedent on which the challengers of Proposition 8 are relying.

Loving v. Virginia, Cooper said, “would not have come out the same way” if Richard Loving, a white man, had chosen not to marry Mildred Jeter, a black woman, but instead sought to wed “Mr. Jeter.”  The Baker decision five years later, the lawyer added, involved a same-sex couple who had tried to use the Loving precedent to support a right to marry, and the Supreme Court refused.

There is no timetable for the Circuit Court to decide the Proposition 8 case — actually, a pair of cases carrying the same title, Perry v. Schwarzenegger (Circuit dockets 10-16696, the appeal by the measure’s proponents, and 10-16751,the Imperial County appeal).

Recommended Citation: Lyle Denniston, Prop. 8: Deciding what to decide, SCOTUSblog (Dec. 6, 2010, 7:22 PM),