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“Proposition 8” defenders’ appeal filed (FINAL UPDATE)

(FINAL UPDATE, 2:41 p.m.  The post has been expanded considerably in discussing the “Proposition 8” case.  In addition, there is a brief new discussion at the end of the post of a new ruling Tuesday against the Defense of Marriage Act by a federal judge in Connecticut.  Further updated Wednesday 2: 37 p.m.: The case has been docketed as 12-144,


Supporters of California’s “Proposition 8,” a ballot measure adopted by voters four years ago to ban same-sex marriage in the state, urged the Supreme Court on Tuesday to uphold the ban and thus put it back into full effect.  The petition and appendix (a file of nearly 500 pages) are here.  The case is Hollingsworth v. Perry.

The document raised a single question: whether the Constitution’s guarantee in the Fourteenth Amendment of legal equality prohibited California from “defining marriage as the union of a man and a woman.”  A three-judge panel of the Ninth Circuit Court split 2-1 in early February in striking down the proposition, finding that it was motivated by hostility to gays and lesbians.  The filing of the petition by “Proposition 8” backers was the latest in a round of new appeals to the Justices on same-sex marriage issues.  The other new cases involve the constitutionality of the 1996 federal law, the Defense of Marriage Act, that permits federal benefits only for marriages of a man and a woman.  Those cases, though, do not raise the issue of whether there is a constitutional right for homosexuals to marry, as does the California case.

Presumably, the cases will be ready for the Court to consider later this summer or early in the new Term that starts October 1.  While there is no guarantee that any of the cases will be granted, it seems highly likely that at least some of them will be.  The Court has never decided, after full review, a case on gay marriage.  It also has never specified the constitutional test to be applied to laws that are claimed to discriminate on the basis of sexual identity.

California so far is the only state that, after having once accepted same-sex marriage as a legal right (that was done in California by the state Supreme Court), then voted to take away that right.  That withdrawal is the main reason that the Ninth Circuit majority found the ballot measure to be unconstitutional.  The majority relied heavily upon a 1996 Supreme Court decision, Romer v. Evans, nullifying a Colorado constitutional amendment that took away the rights of homosexuals to seek laws in their favor.   That withdrawal, the Supreme Court said then, was invalid because it was based upon “animus” toward homosexuals as a group.

Six states and Washington, D.C., now recognize same-sex marriage, and two other states have adopted measures to do so, but those are subject to veto by voters at the November elections.  In the new petition, “Proposition 8” supporters argued: “The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples ‘is currently a matter of great debate in our nation,’ as the court below acknowledged, ‘and is an issue over which people of good will may disagree.'”

Arguing that the issue should be left with the states to decide individually, the petition said that, until the Ninth Circuit had struck down the California measure, every court — state and federal — has upheld the traditional definition of marriage.  The petition also asserted that the Supreme Court has done so, too, in the 1972 decision in Baker v. Nelson.   The Baker decision was a summary ruling, without briefing and oral argument.  Whether that is a binding precedent controlling the same-sex marriage issue now is a subject of ongoing debate in the lower courts, and will be a central issue for the Supreme Court if it grants review of the California case.   (This blog posted an analysis of the Baker issue early this month; it can be read here.)

The federal government has not taken part in the “Proposition 8” case but, since last year, it has strongly supported marriage equality for gays and lesbians, and has argued that the courts should now strike down a ban on such marriages unless it can pass the more rigorous constitutional test of “heightened scrutiny.”  The government has used that argument in challenging the validity of DOMA’s ban on federal benefits for gay couples who are legally married under state laws.   President Obama has recently announced his personal support for gay marriage equality.  Whether the government will file its position with the Justices in the “Proposition 8” case is unclear at this point.  The government, of course, is fully involved in the DOMA cases, and has two petitions pending on the validity of that law’s Section 3 benefits ban.

The “Proposition 8” case, as it reached the Supreme Court Tuesday, is both a broad and a narrow case.  It is broad in the sense that it specifically raises the question of whether the Constitution in any way protects gay marriage equality, and that is the most fundamental issue surrounding the spreading movement to extend marriage rights beyond opposite-sex couples.  But it is narrow in the sense that the Ninth Circuit ruling would seem to apply, in its full force, only to a state where gay marriage once existed and then was denied.   So far, none of the other states that have recognized gay marriage as a legal right has given any indication that it plans to withdraw that right.

When “Proposition 8” was put before California’s voters on November 5, 2008, it passed by a margin of 52.5 percent to 47.5 percent.  It was written to amend the state constitution to say that “only marriage between a man and a woman is valid or recognized in California.”  That was proposed in order to overturn a California Supreme Court decision earlier that year, on a 4-3 vote, ordering that marriage be available to same-sex couples as a matter of state constitutional law.   After the validity of “Proposition 8” under the state constitution was challenged, the California Supreme Court upheld it by a 6-1 vote on May 26, 2009.  Shortly afterward, a challenge under the federal Constitution’s Fourteenth Amendment began in federal District Court in San Francisco, by two same-sex couples.

While the state Supreme Court decision opening marriage to homosexual couples was in effect, before “Proposition 8,” some 18,000 gay marriages were performed in the state.  The state Supreme Court, when it upheld the ballot measure, nevertheless ruled that those intervening marriages remained legal.

No same-sex couples may now be married, even after the Ninth Circuit ruling nullified “Proposition 8,” because that decision is temporarily on hold pending appeals.

The case against the California ban resulted in a sweeping decision in favor of gay marriages by a District judge in San Francisco.  That ruling was much broader than the one that emerged this year from a divided three-judge panel of the Circuit Court.   That Court denied en banc review.

In seeking to put the case before the Supreme Court on Tuesday, the measure’s backers argued that the Ninth Circuit ruling, if left standing, “will have widespread and immediate negative consequences.  As the policy debate progresses in other states (especially, thought not exclusively, those in the Ninth Circuit), it will necessarily be skewed by the suggestion that any experiment with the definition of marriage is irrevocable.”  That, it argued, resulted from the fact that the Circuit Court majority had ruled that, once gay marriage was legal in California, it could not be withdrawn.  That, at least, is the way the ballot measure’s supporters interpret the Circuit Court’s result.

Beyond the issue of whether a state may take away a right once granted, the “Proposition 8” supporters said in their petition, the Circuit Court ruling raised the question of whether states would now feel free to experiment with laws that give gay couples some rights — such as those granted by California to “domestic partnerships” — that stop short of civil marriage as such.   Other states in the Ninth Circuit’s geographic reach, including Hawaii, Nevada, Oregon, and Washington — have recognized legal rights for gay couples who are not married, and those laws may now be questioned because of their design to protect traditional marriage as the formal union of a man and a woman, the petition said.

Meanwhile, in a ruling issued Tuesday afternoon, U.S. District Judge Vanessa L. Bryant of Hartford, Conn., became the latest federal judge to strike down the Defense of Marriage Act’s Section 3, allowing federal benefits only for legal marriages of a man and a woman.  The 104-page opinion can be read here.   That case involved six same-sex couples and a widower, all of whom had been married legally under the laws of Connecticut, Vermont, and New Hampshire.

Judge Bryant rejected an argument by the House of Representatives’ Republican leaders — who have taken up the defense of DOMA in the courts since the Administration has stopped doing so — that the Supreme Court’s summary decision in 1972 in Baker v. Nelson was a binding precedent in favor of DOMA.  The judge said that ruling “has limited precedential value,” and, besides, that case raised a different issue.  There, the issue was the legality of gay marriage under a state constitution, while in the DOMA case the issue is one of federal constitutional law, the judge said.  DOMA, she added, restricts a state’s right to decide who can get married in that state.

While the Hartford judge concluded that gays and lesbians are entitled to significant constitutional protection because of the history of discrimination against them, she ultimately concluded that she did not have to apply “heightened scrutiny” to the benefit ban, because that provision could not survive “under even the most deferential level of judicial scrutiny.”


Recommended Citation: Lyle Denniston, “Proposition 8” defenders’ appeal filed (FINAL UPDATE), SCOTUSblog (Jul. 31, 2012, 12:57 PM),