As you probably know, the US Supreme Court today heard the first of two days of argument on a number of questions surrounding same-sex marriage. Today’s case was about California’s “Proposition 8,” which overruled a decision of the California Supreme Court that had, in turn, invalidated state laws limiting marriage to heterosexual couples. I thought it might be useful to summarize how that case got to the Court, and what might happen now that it’s there.
It’s important to understand how unusual the sequence of events in California was. For years, CA state law had limited marriage to heterosexual couples. Then the CA Supreme Court ruled that, under the CA Constitution, that limitation was invalid. At that point, CA began to issue marriage licenses, and something like 18,000 same-sex CA couples got married. Then Prop 8 passed, which undid the effect of the CA Supreme Court’s decision by amending the state constitution. A subsequent challenge to Prop 8 in the state courts failed, but the courts refused to invalidate same-sex marriage licenses that had already been issued. It also concluded that CA’s existing domestic partnership law, which afforded same-sex couples all the legal benefits of marriage under a different name, remained in effect. So CA was in the very odd situation of having several thousand legally married same-sex couples, but also having a constitutional provision barring same-sex couples from marrying.
At this point, same-sex couples who wished to marry in CA, but couldn’t, filed suit in federal court, arguing that Prop 8 violated the U.S. Constitution. None of the defendants in the case (the two county clerks who had refused the licenses, and four state officers including the Governor and Attorney General) would defend the constitutionality of Prop 8, so the court allowed some of Prop 8’s original proponents to intervene in the case in Prop 8’s defense. The district court held a bench (non-jury) trial and ultimately concluded that Prop 8 was invalid under the US Constitution.
On appeal, the 9th Circuit Court of Appeals first asked the California Supreme Court to clarify whether Prop 8’s proponents were proper parties. The latter court concluded that they were, and sent the case back to the 9th Circuit. The 9th Circuit then ruled on quite narrow grounds that Prop 8 was unconstitutional. Money quote:
Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right – the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard those liberties….
Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” …
We need not and do not answer the broader question [of whether same-sex couples may constitutionally be denied the right to marry under any circumstances] in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
Got that? The 9th Circuit carefully limited its decision to the odd facts before it, in which (1) same-sex couples had previously had the right to get “married,” but that right had now been withdrawn; and (2) even despite that, same-sex couples still had all the legal rights incident to marriage, including the right to raise children and control their children’s education, under the state’s domestic partnership law.
So now the case arrives at the Supreme Court. But since the state has refused to defend Prop 8, we still have the problem that the people on the other side from the couples who want to get married are some of the original proponents of Prop 8, and there are big questions as to whether those people have adequate standing to appeal a federal court judgment. Apparently, standing was a major topic of discussion in today’s argument, and some of the conservative Justices (who seem unlikely to invalidate Prop 8 on the merits) may well want to get rid of the case on this more technical ground.
Here are some possible results:
- SCOTUS writes an opinion declaring that the Prop 8 proponents lack standing. This would result in no decision on the merits of the constitutional claims from the Supreme Court. It would also require that the 9th Circuit’s opinion be vacated (i.e., it would be as if that opinion were never written). Ultimate impact: the California federal district court’s opinion remains in place, Prop 8 is held invalid, and same-sex couples in CA can get married again. But the case has no effect beyond California.
- SCOTUS issues an order saying that the case is “dismissed as improvidently granted.” A DIG (as it’s known in SCOTUS parlance) is a device occasionally used by the Court that essentially says “we never should have agreed to hear this case in the first place.” Most cases that are DIGged have some sort of technical problem that make the case a poor candidate for Supreme Court review such as, in this case, the lack of a proper party to defend the law being challenged, or the extremely unusual sequence of events in CA surrounding Prop 8. The ultimate effect of DIGging the case would be to leave the 9th Circuit’s opinion standing, which would mean that it would apply not only to CA but also to AK, WA, OR, ID, MT, NV, AZ, HI, Guam, and the Northern Mariana Islands. However, since the 9th Circuit’s opinion was so carefully limited to its unusual facts, the practical effect of this result would not be much different from the previous option: the ruling would legalize same-sex marriage in CA, but would not have much impact elsewhere.
- SCOTUS concludes that the Prop 8 proponents do have standing. In this case, the Court would go on to decide the case on the merits. And there are a bunch of different possible outcomes here as well:
- SCOTUS concludes that there is no constitutional right to same-sex marriage, and Prop 8 is upheld. This would mean that same-sex marriage remains illegal in CA, and would leave it to other states to work things out on their own.
- SCOTUS agrees with the 9th Circuit that, given CA’s unusual circumstances, Prop 8 is invalid. This effectively legalizes same-sex marriage in CA but not anywhere else.
- SCOTUS concludes that the Constitution requires that same-sex couples be allowed to marry. This invalidates Prop 8 and also legalizes same-sex marriage throughout the country.
My guess? The Court DIGs this case, or writes an opinion dismissing it for lack of standing. Tomorrow is the DOMA argument – fasten your seatbelts for that one.
fenway49 says
between the standing path and the DIG path. The district court’s opinion, which would control if the Court finds no standing, is a much broader opinion, but of course would not be binding precedent throughout the 9th Circuit.
If they go the DIG route, I’m not sure I agree with your conclusion that:
Same-sex marriage is legal in Washington State, and Oregon will soon vote on the issue. Hawaii has civil unions. Nevada has domestic partnerships. It seems to me that if any of these states tried to go backwards, through Tea Party-style legislation or ballot initiative, the 9th Circuit precedent would be controlling if they go DIG. Same would apply if any other 9th Circuit state were to grant rights, by any means, then try to rescind them.
Not to mention using the case as persuasive authority to extend this principle to other sympathetic circuits.
David says
if the Court DIGs the Prop 8 case, the 9th Cir precedent applies in the states you mention; there is therefore, as I said in the post, an important legal difference between the standing opinion and DIG routes. However, the fact that CA extended not only domestic partner benefits but the word “marriage” to same-sex couples was important in the 9th Cir opinion. So it’s not clear to me whether, should a domestic partnership state later try to repeal its domestic partnership law, that the 9th Cir Prop 8 case would have anything to say about that. Similarly, if WA were to try to repeal same-sex marriage and also simultaneously repeal any existing domestic partnership legislation, that also would not necessarily be directly controlled by the 9th Cir’s Prop 8 opinion. Perhaps ironically, Prop 8 suffered by not going further than it did, at least under the reasoning of the 9th Cir’s opinion.
fenway49 says
The 9th Circuit said that Prop 8 “left the incidents [of marriage] but took away the status and dignity.” and concluded that there was no legitimate basis for taking away the formal title “marriage,” that it could only be motivated by animus, etc. as held in Romer. Leaving the “incidents” intact didn’t save Prop 8.
That the term “marriage” has independent value doesn’t mean the other, more tangible, benefits don’t. If anything, it’s an easier case if they tried to take the “incidents” away. The “incidents” are more clearly the type of tangible rights that courts have been comfortable protecting. If you can’t strip the formal title “marriage” while leaving the other benefits, I don’t see how you can take the tax benefits, etc.
The 9th Circuit case, as I read it, stands for the proposition that NO tangible right, be it a tax benefit or the “status” of being married, can be taken away for reasons of anti-gay animus. That’s how I’d argue it and I think it’s a winning argument under this precedent.
David says
Read the 9th Cir opinion carefully (emphasis mine):
The 9th Cir is doing everything it can to avoid Supreme Court review on the merits, and it may yet succeed if SCOTUS DIGs or dismisses for lack of standing. In the course of so doing, it also comes pretty close to confining the precedential effect of the case to its own peculiar facts. Sure, if the opinion survives SCOTUS review, future marriage equality advocates will no doubt try to frame the argument as you are doing. I’m saying it’s not a slam dunk.
As for this: “Leaving the ‘incidents’ intact didn’t save Prop 8” – indeed not. To the contrary, leaving the incidents intact probably contributed to killing it. If Prop 8 had repealed not only “marriage” but also, say, the right of same-sex couples to adopt children under CA’s domestic partnership law, it would have been much easier for proponents to argue that Prop 8 served the state’s interest in “childrearing and responsible procreation.” As it was, they couldn’t argue that, because adoption rights etc. remained intact. It was precisely leaving all the “incidents” of marriage intact while withdrawing the designation of “marriage” that made it so easy for the Court to conclude that the only thing motivating Prop 8 was anti-gay animus.
fenway49 says
that the 9th Circuit wrote that “the surgical precision with which [Prop 8] excises a right belonging to gay and lesbian couples makes it even more suspect” than the broader reach of the Colorado amendment in Romer. But I take that as a case of using the material you’ve got. As you say, they wanted to avoid Supreme Court review on the merits and the narrow ruling gets them there.
But the court also noted (page 43) that Romer itself found fault with a law that “withdrew from homosexuals, but no others, specific legal protection.” Like the “incidents” of marriage, the protection at issue in Romer was tangible legal protection (i.e. against housing and employment discrimination, etc.).
I have no doubt that, had Prop 8 taken away the “status and dignity” AND the “incidents,” rather than just the “status and dignity,” the 9th Circuit would have invoked Romer to strike it down just the same. Indeed, on page 62 the court wrote: “We in no way mean to suggest that Proposition 8 would be constitutional if only it had gone further, for example, by also repealing same-sex couples’ parental rights or their rights to share community property or enjoy hospital visitation privileges.”
This:
is a losing argument. Justice Kagan blew it out of the water yesterday by saying it would preclude issuance of marriage licenses to couples over 55. All these sorts of arguments fail and you’re left with nothing but animus anyway.
It’s an interesting discussion and I certainly see your point, but I still don’t see how under Romer and this opinion, taking the “incidents” away would pass muster.
Christopher says
On Facebook Steve Lynch is among those who has changed his profile picture to the red equals sign today. Has he come around?
fenway49 says
He’s running in a statewide Democratic primary.
kbusch says
we win these things by getting people to change positions.
fenway49 says
He took the opposite position for twenty years because it worked for him. If his calculus has changed, that’s because people who sincerely believe in the issue did the work. If they’ve succeeded to the point where even Steve Lynch is on board, that means there’s been a sea change.
Welcome him to the bandwagon, I guess, but I’ll go with people who didn’t build their careers being on the other side.
kbusch says
When we welcome people who have crossed the Ocean of Evolution to arrive on the Equality Shore, we generally want to be as positive as we can be so that other people take the voyage expecting a fabulous welcome on the other side.
(That said, I think the discussion of Senator Portman elsewhere on the left blogosphere has been very interesting.)
stomv says
and I especially smiled when you mention a “fabulous” welcome.
fenway49 says
if I believed it. Given that he used this very issue as a wedge to win elections in the past, that would take a lot. It would help if he would speak out against the parade instead of continuing to hide behind Scalia & Co.
Re: Portman, I think having a Republican Senator come out in favor will speed the cause along somewhat. I give him credit for taking the position publicly. I criticize him for failing to do so when he still thought he might by Romney’s VP pick, the same sort of expediency engaged in by (ahem) Obama and the Clintons. I lament the fact that it seems most Republicans don’t support anything until it affects them personally; completely incapable of empathy. As I saw in a cartoon recently, it might help if relatives of Republican politicians started being poor too.
stomv says
Pedantic, perhaps, but I think the distinction has a difference. Loosely, one can only be empathetic if one has also had that feeling or experience. One can be sympathetic without ever experiencing that state of being.
Republicans can’t seem to be sympathetic. Rather, they only show empathy. Nancy Reagan supports stem cell research. Dick Cheney and Rob Portman support gay marriage. Sarah Palin supports expanded care and consideration for children with developmental disabilities. James Brady supports restrictions on handgun and assault weapon ownership.
It seems to me that if more “bad” things happened to the family members of Republicans (either universally bad like Alzheimer’s or being shot, or merely Republican-bad, like having a gay family member), their collective empathy, when combined with the sympathy of Democrats, might be enough for our government to show more compassion for others from time to time.
fenway49 says
I had the two terms backwards in my head. I agree there is a difference, and it’s important here. My point was precisely that they don’t feel “your pain” until it becomes their own pain.
kbusch says
There’s been a fair bit of commentary on the Left about how various conservatives are able to show empathy on some issue uncharacteristic of conservatives when it affects their families. For example, there is a sprinkling of conservatives (Palin included) with a special place in their hearts for the mentally ill — just as the normally heartless Cheney will say good things regarding gay equality.
One point is that the children of no Republican Representative or Senator is poor. So poor children never get to benefit from this sort of personal exemption from party-line mean-spiritedness.
shillelaghlaw says
President Obama, President Clinton, and Secretary Clinton are all fairly recent converts to the idea of marriage equality. Not to mention the 45% of Americans who have shifted over the past 25 years.
How come when it’s a politician you like or the members of the public who change positions it’s “evolution” and “acceptance” but when it happens to be a guy you’re not voting for, it’s “pandering” and “opportunism”?
fenway49 says
I’ve written quite a bit about how Clinton should be ashamed of DOMA and Obama and Hillary have been huge disappointments on this particular issue. So if you’re looking for the guy who gave any of them a pass, keep looking.
My personal instinct on this is that the Clintons and Obama cynically said they opposed it for political expediency, when in reality they didn’t care, while Lynch (by background and past positions on choice, hate crimes, parade, etc.) truly doesn’t like gay marriage, but has cynically changed his public stance for political expediency. If that’s so, Lynch’s conversion strikes me as worse, but not by much.
This is a guy who didn’t just oppose gay marriage, he ran for office on Wacko Hurley’s right to discriminate in his parade. He then opposed partner benefits and every hate crime protection for GLBT people that came up on Beacon Hill.
Laurel says
are online at http://1.usa.gov/15QiV0i
jconway says
That quote was said by Sen. Dirksen (R-IL) regarding the civil rights act and it certainly cross applies here. I think its important to welcome the conservative Democrats and Republicans coming over to the correct side of this issue. It’s also important to remember though who stood up early and stood up first. If its Markey v Lynch I vote Markey who has been an early supporter of gay marriage. If its now equality supporting Lynch v. discrimination supporting Sullivan it’s not really a contest.