Tuesday, February 7, 2012

9th Circuit rules California anti-gay marriage initiative unconstitutional

Those damn social issues just never seem to go away:
A federal appeals court Tuesday struck down California's ban on same-sex marriage, clearing the way for the U.S. Supreme Court to rule on gay marriage as early as next year.
The 2-1 decision by a panel of the U.S. 9th Circuit Court of Appeals found that Proposition 8, the 2008 ballot measure that limited marriage to one man and one woman, violated the U.S. Constitution. The architects of Prop. 8 have vowed to appeal.
The ruling was narrow and likely to be limited to California.
“Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the court said.
The ruling upheld a decision by retired Chief U.S. District Judge Vaughn R. Walker, who struck down the ballot measure in 2010 after holding an unprecedented trial on the nature of sexual orientation and the history of marriage.

In a separate decision,  the appeals court refused to invalidate Walker’s ruling on the grounds that he should have disclosed he was in a long term same-sex relationship.  Walker, a Republican appointee who is openly gay, said after his ruling  that he had been in a relationship with another man for 10 years. He has never said whether he and partner wished to marry.
Analysis from Legal Insurrection:
The Court essentially used a bootstrap argument — that since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment. Judge N.R. Smith filed a 39 page dissent from this finding.
The Court also held that (i) the supporters of Prop. 8 did have standing to defend the law, deferring to the Certified Opinion of the California Supreme Court, and (ii) trial court Judge Walker did not have to recuse himself based on his own longterm samesex relationship. These two findings were unanimous.
I can’t copy/paste the key part for some reason, so scroll down to the bottom of page 46 of the majority opinion and read from there to the bottom of page 48. The Ninth Circuit could have gone four ways here: (1) They could have found a fundamental right to marry whomever you wish regardless of gender; (2) they could have found that gays are a historically persecuted “suspect class” and therefore laws discriminating against them are invalid unless there’s a very compelling state interest at stake; (3) they could have found more narrowly that Prop 8 serves no rational purpose in advancing any state interest, in which case they wouldn’t have to reach any of the big questions about gays or marriage to find the law unconstitutional; (4) they could have upheld the law.
Number four was never going to happen with a court this liberal, but numbers one and two were possibilities. Instead, they went the third route, which was the tamest possible way to strike Prop 8 down as a violation of the Equal Protection Clause. The key Supreme Court precedent here, and the subject of most of the jousting between the majority and the dissent, is the 1996 case Romer v. Evans, in which Anthony Kennedy wrote for a majority of six in striking down a Colorado law that expressly barred any “special rights” from being granted to gays. Kennedy also took the tame option in that case, passing on the issue of whether gays are a “suspect class” and finding instead that Colorado’s law was invalid because there was no rational purpose to its discrimination. The question before the Ninth Circuit was whether there’s a rational purpose to discriminating against gays specifically in the context of marriage; read the opinions yourself for the back and forth about marriage and procreation on that. I’m intrigued, though, as to why the famously liberal Stephen Reinhardt wasn’t more aggressive in his majority opinion. Did he want to find that gays are a “suspect class” under the Equal Protection Clause, which would therefore have warranted strict judicial scrutiny of Prop 8, but couldn’t get the other judge in the majority to go along? Or was this a strategic decision, figuring that if he followed Kennedy’s logic in Romer v. Evans closely, this ruling would have a better shot of being upheld by the Ninth Circuit en banc and, eventually, by the Supremes themselves? If the goal was to force the High Court to rule on it, then the strategy should have been to be as bold as possible and create a circuit split on the core constitutional issues at stake. Reinhardt didn’t do that. Curious.
The other key passage, I think, starts on page 39 of Reinhardt’s opinion and runs through page 40. He notes that Prop 8 did nothing to deny gays the rights traditionally associated with marriage, which are granted under California’s domestic partnership law, but merely the designation of “marriage” itself. That’s key to the ultimate ruling that Prop 8 served no rational purpose in advancing a legitimate state interest. If all you’re doing is denying gays the label and not the attendant benefits of marriage, then what is there to the law except pure stigma?
Doug Mataconis:
Perhaps the most significant thing about the Court of Appeals decision here, both legally and politically, is the manner in which it is narrowly tailored. To a large degree, the Court’s decision is limited to the specific situation of Proposition 8 itself and the issue of the Constitutionality of taking away a right that had been previously been granted. The decision also relies heavily on the fact that California law already grants same-sex couples and individuals a number of legal rights such as the right to adopt children that mirror a family but that Proposition 8 was enacted for the specific purpose of denying those same couples the right to obtain a marriage license and call themselves married under state law. As the Court held, there is no rational basis for this distinction


This is a somewhat narrower ruling than Judge Vaughn Walker’s ruling back in 2010, though not by much. However, because of the manner in which it is based on the specific facts that led to the passage of Proposition 8 and the rights already granted to gays and lesbians under California law, it’s the kind of decision that is unlikely to lead to a nationwide ruling the same-sex marriage even if it were to be ultimately upheld by the Supreme Court. At the most, it would appear that it would have the most immediate impact in states where civil unions are already recognized but same-sex marriage is not. In those states, the Court’s argument that there is no rational basis to withhold the label of “marriage” when state law already effectively grants homosexuals many of the legal rights of marriage but denies them the legal and social status of marriage itself. As the Court found in this case,  and there is of course much more to the ruling than the portion quoted above, there is no rational basis for what Proposition 8 did under any of the theories put forward by the proponents, partly because all it did was say that gays and lesbians couldn’t “marry” while preserving all the rights that California law grants to them many of which undercut the very arguments that the proponents were making.

When it comes to the many states where same-sex marriage is banned, largely be Constitutional Amendment at this point, and there are no same-sex civil unions though, this decision provides at most only half the argument a Plaintiff would need to strike such provisions down. The Court’s ruling that there is no rational basis to restrict the rights of marriage to only opposite-sex couples will be powerful ammunition for Plaintiff’s in those cases, of course. However it’s going to take a little more legal legerdemain to convince a Court to hold that same-sex marriage should be recognized as a right in states that have never recognized it or granted marriage-like rights to same-sex couples. Personally, I’m convinced that argument will be made and will succeed sooner rather than later, but it’s going to take more work than just relying on the decision in this case.
Both opinions are well-reasoned, though I agree with the majority. Reinhardt is viewed as one of the most liberal judges in the country and he seems an attractive foil for some of the conservative justices. Many have said that in the past these justices appeared to be gunning for the Ninth Circuit and particularly Reinhardt. Justices like Scalia are likely to favor cert in the case. However, it is to the advantage of the challengers to try their hand at the en banc first. There is always the danger that one of the four most reliable conservative justices might not want to take the risk of granting cert. As it stands, this is precedent controlling only in the Ninth Circuit.
The matter could not be more central to a nation built on both the rule of law and pluralistic values. If discriminatory views are enough to satisfy the rational basis test, a host of insular minorities would face majoritarian harassment and abuse. Quoting an earlier Supreme Court ruling in Moreno, the court ruled that “[j]ust as a ‘desire to harm . . . cannot While race and religion trigger strict scrutiny, sexual preference is not treated as a suspect classification for the purposes of the constitute a legitimate governmental interest,’ . . . neither can a more basic disapproval of a class of people.”
I am nominally a Republican simply because of issues of national security, crime and, increasingly, environmental issues, on all of which I am a conservative.  On most social issues, I tend to be liberal. (So I effectively have no political party: too conservative for Democrats, not conservative enough for Republicans.)  As a supporter of GLBT issues, I generally support gay marriage on the logic that it makes them happy and it hurts no one; at least, gay marriage opponents have never been able to say whom is hurt by gay marriage or how.

This ruling presents definite problems.  I think gays should already have a right to marry under the Constitution on equal protection grounds, but most don't see it that way.  I think gays should be making their case politically rather than in the courts, because while the courts may side with them, a court-imposed victory could actually delay or prevent acceptance of gays into society the way Roe v. Wade has actually increased opposition to abortion.  That said, if they are making no headway politically, they have no choice but to go the court route.

Unfortunately, this ruling is likely more polarizing than anything.  Proposition 8 was passed by a majority of California voters. Surprised the hell outta me.  It will likely be voted out at some point in the near future, but for right now it adds some legitimacy to the law.  It is by no means the final word nor should it be -- for example, just because a majority passes a law legalizing slavery doesn't mean it should be Constitutional and upheld by the courts -- but the homosexual community really needs to take a look at why a majority in California, the most liberal state in the country, passed such a discriminatory measure. 

This ruling is not good for Republicans, either.  Regardless of the support for gay marriage across the country, Republican candidates will feel compelled to oppose gay marriage so they can secure the support of evangelicals and Christian conservatives who oppose gay marriage.  Unfortunately, as I have said before, that will likely cement the GOP's image as the town in Footloose, which voters have repeatedly demonstrated they do not want. 

This is a minefield for the GOP.  Tread lightly.

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