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Court review of Prop. 8 opposed

The two high-profile lawyers who started the nation’s most significant lawsuit attempting to gain marriage rights for same-sex couples told the Supreme Court on Friday that it might find it very interesting to take up that issue now, but urged the Justices not to do so in the only case now at the Court that could raise that question — the case testing the constitutionality of California’s “Proposition 8.”   Attorneys Theodore B. Olson and David Boies argued that the case has procedural flaws, made no change in the law, involves no conflict among lower courts, and might raise core constitutional issues that the Court may not be ready to confront.

Their brief in opposition was filed in the pending case of Hollingsworth v. Perry (docket 12-144).  Officials of San Francisco also filed an opposing brief making some of the same points, as well as stressing the view that the “Proposition 8” case is one that essentially affects only California and arguing that the Court should allow lower courts to go on exploring gay marriage cases before the Court itself takes on fundamental questions.

The case is one of seven on the gay marriage issue now pending on the Court’s docket (discussed in this post earlier this week).   The other six involve the constitutionality of a part of the 1996 federal Defense of Marriage Act that allows only marriages involving a man and a woman to qualify for any federal benefits or other provisions spelled out in more than 1,000 federal laws.  Those six  DOMA cases, though, do not raise any issue about a right of gays and lesbians to marry, because the same-sex couples involved were legally married under state laws that permitted them to wed.

In San Francisco officials’ new brief in the “Proposition 8” case, they urged the Court to focus now on the DOMA cases, contending that a decision on that controversy will affect lower courts’ review of other gay marriage cases.  “Put simply,” that brief said, “the Court will be in a better position to address state marriage rights for same-sex partners after the constitutionality of DOMA has been decided than it will be if it grants” review now of “Proposition 8.”

When lawyers Olson and Boies filed the “Proposition 8” challenge in May 2009, it was their goal even then to put on a case that ultimately would reach the Supreme Court.   They argued that, by the time the case reached the Justices, the idea that same-sex couples should have the same right to marry would no longer be considered odd or radical, and they made a strenuous effort to prepare a case with evidence that marriage would be as vital — and as fulfilling and successful — for same-sex couples as for opposite-sex couples.  The target of the lawsuit was the statewide ban on gay marriage — “Proposition 8” — that California voters had approved in 2008.

The lawers and their clients, two same-sex couples, won nearly everything they sought two years ago this month, in a sweeping decision in U.S. District Court in San Francisco.  The district judge struck down the ballot measure, and barred its enforcement, concluding that the proponents of the measure had come up with no evidence to support the ban, leaving the “inference” that the change in the state’s constitution was “premised on the belief that same-sex couples simply are not as good as opposite-sex couples.”

That ruling, however, has never gone into effect.   It was blocked while the San Francisco judge’s ruling was tested in the Ninth Circuit Court, where a majority of a three-judge panel also struck it down.  With the highest state officials refusing to defend “Proposition 8” in court, it has been defended by the sponsors of the measure.  And they are the ones who have now sought to take the case on to the Supreme Court, filing their petition on July 30.

The case as it reached the Justices’ docket no longer involves the sweeping decision by the district judge.  That has been displaced by a considerably narrower ruling of the Circuit Court.   The Circuit majority declined to rule on whether same-sex couples have any legal right to marry.  Its decision was based on the conclusion that California had for a brief period allowed such marriages, and then took away that right, serving only to “lessen the status and dignity of gays and lesbians in California,” and to officially treat their relationships as inferior.  This move, the Circuit Court declared, was closely similar to what the state of Colorado had done in taking away existing laws protecting homosexuals against discrimination in that state, after having previously assured such protection — a reversal that the Supreme Court struck down in its 1996 decision in Romer v. Evans.

The two California couples who won the case in both lower courts said on Friday, through their lawyers, that the case did raise an issue that “is undeniably important.”  They added that “the question whether the states may discriminate against gay men and lesbians in the provision of marriage licenses is the defining civil rights issue of our time.”  That is, of course, the question that has been at the center of their lawsuit over the past three years.

The brief suggested that the “Proposition 8” case “is an attractive vehicle for approaching — if not definitively resolving — that issue.”   The cases reaches the Court “on a fully-developed factual record — indeed, the most comprehensive record ever developed in a case challenging a restriction on the right to marry.”

Moreover, the document said, it has happened that this case reached the Court at the same time as the cases on the constitutionality of the federal Defense of Marriage Act with its differing treatment of benefits for opposite-sex couples and same-sex couples   The DOMA cases, it said, will “place squarely before the Court” the question of which constitutional test must be met by laws treating gays and lesbians differently.  Both the DOMA cases and the “Proposition 8” case, the brief said, would enable the Court “to benefit from the extensive records developed” in all of these cases as the Justices analyze laws that discriminate against homosexuals.

All of those arguments would seem to add up to a recommendation that the Court should go ahead and hear the “Proposition 8” case.   But the new brief moved to just the opposite conclusion.   The case, the couples argued, does not satisfy any of the Court’s traditional standards for granting review of a case, so review is not warranted now.  All that the Ninth Circuit did on the merits, the brief said, was to closely apply the Supreme Court’s decision in Romer v. Evans,  leaving the implication that the Circuit Court actually broke no new legal ground.

There can be no conflict among lower courts on the issue at stake in “Proposition 8,” the brief said, because of its focus only on the situation that unfolded in California — allowing same-sex marriages, then disallowing them.

As a further reason for the Justice to bypass this case, the brief argued that there  are “substantial doubts” about whether the proponents of “Proposition 8” had a legal right to file their appeal to defend that measure.   The sponsors cannot show that they personally would suffer any injury if same-sex couples were allowed to get married, and so they lack “standing” (the legal right to be in court) to file their defense.

Finally, the brief said, even if the Court were to find that the measure’s backers were entitled to defend it legally, the Court would then have to deal with the ultimate question of whether there is, indeed, a constitutional right for gays and lesbians to marry their partners.  The argument that there is such a right, the document said, is one that could be put forth to justify striking down “Proposition 8” even though the Circuit Court did not address that core issue.  That raises fundamental issues about whether constitutional guarantees of legal equality extend to those who have a different sexual orientation, and whether denying an equal right to marry violates constitutional guarantees of due process, the brief said.







Recommended Citation: Lyle Denniston, Court review of Prop. 8 opposed, SCOTUSblog (Aug. 24, 2012, 10:55 PM),