Proposition 8 is Dead! Or is it? By Frank Pond

Proposition 8 was declared unconstitutional (again) by a three Judge panel of the (Federal) Ninth Circuit Court of Appeals.  The Circuit covers California and other western States but this opinion only applies to California.  In fact, the narrowness of the holding by the Court is what makes it likely that there will be marriage equality (soon) in California.  Then again…

What happened and what happens next?

Understanding what has happened and what could happen requires a re-visit to the timeline of all issues regarding Proposition 8.  Here is that summary:

What happened is that the California legislature passed marriage equality several years ago.  The bill was vetoed by then Governor Arnold Schwarzenegger.  A case was filed and the California Supreme Court ultimately ruled that the inequality of denying lesbian and gay citizens of California was unconstitutional under the California constitution (as opposed to the Constitution of the United States).  Because the Supreme Court is the ultimate determiner of constitutionality, marriages were allowed in California beginning in approximately June of 2008.  It was a great day and the decision by the California Supreme Court was beautiful and breath-taking.  Basically, it stated that gay persons (of whichever gender) are equal citizens of California and due equal protections under the California State Constitution.  It further honored religious freedom by inviting the California legislature to create only civil marriage in California thereby allowing religious institutions the right to confer, or not, marriage to their believers but that civil marriage must be open to all citizens regardless of gender or gender orientation (sorry for the use of that old clunker of a term but it is good for the shorthand of this explication).

Bells rang and happily equal citizens throughout California got married (civilly) and marriage overall did not fall nor did religion suffer an immediate lack of participation nor was any religious group forced to confer marriage to gay persons and, in fact and due to the brilliant decision of the court, religious groups were forever and constitutionally protected from never having to confer marriage where their faith did not support such wedding.

Then, several political (and religious) groups maliciously (yes that’s the only word I can use since the decision brilliantly PROTECTED religious groups from ever having to support gay persons) attacked.  Proposition 8 went on the ballot in November of 2008 and, after what many activist would call an unsatisfactory campaign in favor of marriage equality, the Proposition passed by nearly 52%.  There was great acrimony after the vote and some silly finger-pointing ensued wrongly suggesting that there was a racial makeup of the vote in favor of Proposition 8.  There wasn’t.  And the pernicious attempt to race-bait was ultimately a talking point of the right meant to divide the left and proponents of equal rights under the law.  Rather, a careful study of the vote suggested that age was the real determinant of the vote divide.  Basically, those over 45 supported the ban on marriage equality and those under strongly voted against the ban.

A court case was filed and that ultimately was heard by the California Supreme Court.  The California Supreme Court ruled, in a strange decision, that while they were right that under the California Constitution there had to be equal protection under the law for all people including gay people, the vote of the people was clear and unambiguous and thus the Constitution was amended to stop such equality.  If one is reading this and says, HUH, you are just about right in terms of the tortured logic of that position.  But, the California Supreme Court did something interesting (and logically correct under their conclusion) which was to allow those who married between June 2008 and then to keep their marriage licenses and equal right to marriage. Thus, under California’s theory of “Equal” Protection, there were now straight people who had the right to marry civilly, some gay people who had the right to marry civilly and some that did not.  HUH!

This case was then filed in Federal Court by plaintiffs supported by the great (I am biased) organization:  Americans for Equal Rights (“AFER”).  Ted Olson (he of STRONG conservative stock–formerly W. Bush’s Solicitor General and the lawyer fighting for Bush in Bush v. Gore) and David Boies (he of more centrist/left stock–worked for Bill Clinton and was Al Gore’s lawyer in Bush v. Gore) signed on as lawyers and they did a brilliant job of suing in favor of marriage equality.

The trial court was overseen by Vaughn Walker (who happened to be picked by lot and happened to be gay–something that caused the zealots who hate equality to go ballistic about–like a woman Judge couldn’t hear a case about women’s rights???–but when one is living in the 1800’s, one seems to stick with tired old theories).  The case wasn’t even close.  The “Defenders of Marriage” couldn’t come up with one iota of a reason why marriage was doomed by treating people with equal respect under the law.  And Proposition 8 was found to be unconstitutional under the United States Constitution–completely and totally.

There were then some arguments (about Judge Walker’s sexual orientation for example and whether the anti-equality groups had standing since Governor Schwarzenegger and subsequently Governor Brown saw fit to agree with Walker’s ruling) but ultimately came this past week.

The ruling was written by Justice Reinhardt and was a 2-1 vote.  Much in the right-wing (read Fox News) bloviation that the two were respectively a Clinton and Carter appointees and the one was a Bush appointee.

The ruling was much more narrow than that of Judge Walker.  The ruling specifically finds that the holding of unconstitutionality is not based on gay persons right to marry under the US. Constitution or its Equal Protection under the law.  Rather, the ruling ultimately concludes that California has discriminated against some gay persons by allowing others to marry and not all.  This is shorthand as the ruling is more nuanced but for the purposes of this explication it will suffice.

So, what does the ruling mean for gay people?  It means that, once the stay is lifted, i.e. the Court did not Order immediate licensing of civil marriages but rather wants to hold on that while the full Ninth Circuit considers an appeal by the losing side, all gay persons (of either gender) will have the right to marry in California and that taking away that right is impossible because taking the right away from the already married gay persons would always be unconstitutional.

For practical purposes, it would mean that California would now have full marriage equality and it could not be touched unless the full Ninth Circuit or the U.S. Supreme Court disagreed and/or an amendment was passed by a supermajority of Congress and then a supermajority of State legislatures and Governors.  But, the decision will have no impact on any other state nor could it be read to mean that the United States Constitution finds that bans on gay marriage are unconstitutional.  California would join the six states with marriage equality (and Washington would make it seven in a few weeks now that they have passed marriage equality) and the District of Columbia (and still traditional marriage thrives without defense in these states).

So what is likely to happen:

The next step would be for the pro-Prop 8 groups to petition the full Ninth Circuit to re-hear the case.  This would mean that the decision of the three Judge panel would be on hold while the entire group of Justices hear the appeal.  Should the Ninth Circuit decline this option (and they probably will due to the narrowness of the decision and its holding), then the next step would be for the pro-Prop 8 groups to petition the United States Supreme Court to overrule this decision. And they would surely petition the Ninth Circuit to keep the stay on new marriage licenses while the US Supreme Court considered hearing the appeal.

The United States Supreme Court gets thousands (or even tens or hundreds of thousands) of petitions for appeal each year.  They only hear those cases where at least four Justices agree to hear them.  This is where things get most interesting.  What would/could the US Supreme Court do (or the whole Ninth Circuit and then the Supreme Court).

The easiest path would be for the Ninth Circuit to decline a rehearing, en banc (i.e. the whole of all Justices) and then the US Supreme Court to decline to hear the appeal too and simply allow the narrow ruling to apply.  In that instance California would join the then 7 states plus the District (and probably, by then, also New Jersey, Maryland and Maine which is re-voting on their prior vote to reinstate the ban on marriage equality).  Others are sure to follow.

The other options are:

The Ninth Circuit takes up the hearing, en banc, and rules that the decision and Judge Walker were wrong.  This is very unlikely.

The Ninth Circuit takes up the hearing, en bank, and rules that the ruling is too narrow and that marriage for all must be equal under the US Constitution.  I think this is also not very likely.

The Ninth Circuit takes up the hearing and agrees to the narrow ruling.  This is more likely.

The Ninth Circuit declines to hear the appeal further and lets the pro-Prop 8 groups go straight to the US Supreme Court.  This is the most likely.

What about the US Supreme Court?

This gets trickier when trying to predict what the US Supreme Court would do.  They could run the gamut from doing nothing, i.e. not granting a hearing in the case and thereby letting the lower appellate court decision stand to determining that marriage equality is the law of the land in all 50 states.  And there are lots of options they could pick in between these scenarios.

Right now, it is thought that there is a block of 4 votes on the US Supreme Court that would actually like to find in favor of full marriage equality (in all states).  That may be correct or it may be wishful thinking on the part of those promoting equality under the law (what the Country was founded on, one may recall).  But, there is an equal belief that there are 4 votes absolutely opposed to this happening.  That leaves one vote in the middle, that of Justice Anthony Kennedy, a Reagan appointee and staunch Roman Catholic.  That said, Kennedy penned both the Roemer v. Evans decision and the Lawrence v. Texas decision.  Roemer stands for the proposition that an electorate cannot take away the rights of a minority group through political voting, i.e. what Madison called “tyranny of the majority.”  In that case, Colorado passed and Amendment which said that gay persons could never be included in civil rights or equal rights ordinances.  Kennedy said forcefully that such is un-American.

In Lawrence, Justice Kennedy struck down all criminal laws against sodomy and, in doing so, stopped the criminalization of all gay acts.  This was a bold decision as was Roemer and Justice Kennedy wrote opinions that changed the course of gay rights exponentially.

But, would he do so again and favor marriage equality throughout the land.  The jury is decidedly out on that.  Equally, this author is not sure whether the 4 opponents to marriage equality would be able to get a fifth vote to strike down the opinion of Justice Reinhardt which applies narrowly and only to California.  This is not because there beats a human heart in favor of equal rights in Justices Scalia, Thomas, Roberts and Alito, but rather because they are pragmatists who might fear pushing too far might push Justice Kennedy in the opposite direction.

So what are the options and what do I think are the odds:

Right now, assuming the Ninth Circuit does not broaden Justice Reinhardt’s decision, I would bet about 50% that the US Supreme Court will simply punt and not grant a hearing.  This would leave marriage equality fully in place in California but wouldn’t expand that elsewhere.

Another 25% is that the grant hearing but the ultimate result is the same, i.e. that the two groups at odds can’t agree and Justice Kennedy favors the narrow position enunciated in Justice Reinhardt’s decision.

Thus, the most likely result is that California will have and keep its equal rights but that the Court and Courts won’t touch the full marriage equality question.

But, what if they do?  Interestingly, I would say the odds then are 10% that the Court rules 5-4 that gay persons have no right to marry under the US Constitution and 15% that they find in favor of full marriage equality in all States.

What I do think will happen though is that even if the 75% prediction holds, Justice Kennedy may do one more thing to help move progress forward and that would be to hold, clearly, that voters cannot vote away equal rights or bar them in the future towards gay persons or any minority group.  This would mean that all future decisions regarding marriage equality would be by legislatures and courts and not by the will of the electorate.  If he did that, Justice Kennedy would be returning sanity to this matter and bringing the norm back into place about equal rights.  Gay persons should not be the only minority ever which had its rights controlled and determined by the ballot box.  That is fundamentally un-American and must stop and would be a huge step forward even if the US Supreme Court otherwise avoids the question of marriage equality outside of California.

While I want full and equal rights throughout the land, this weeks decision is a step towards that worthwhile goal and the risks are slim (though not none) that at worst we end up with marriage equality in California and a slow slog throughout the States until such time as the population meets the demographic of younger Americans who think it crazy to deny gay people rights.  Especially when such is premised on a lie trying to create a schism between individual freedom and religious freedom.  Simply read the original California Supreme Court ruling and one realizes that both equal rights and religious rights can co-exist quite nicely and those that say otherwise are trying to only divide and to cause those in favor of equal rights the heavy cost of future vote battles.