Prop 8 Supporters File Supreme Court Appeal

Proponents of Proposition 8, who intervened as defendants in a federal lawsuit to defend their initiative amendment to the California Constitution banning same-sex marriage, have asked the U.S. Supreme Court to review the 9th Circuit's decision that their initiative violates the 14th Amendment of the U.S. Constitution.  Hollingsworth v. Perry, Petition for a Writ of Certiorari filed July 30, 2012.  Attorneys for the plaintiffs, who challenged the constitutionality of Prop 8 in the trial court, announced that they would oppose Supreme Court review, but were ready to defend their 9th Circuit victory before the Supreme Court if review is granted.

The Petition frames the question presented to the Court as: "Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman."

Proposition 8 was enacted by California voters in November 2008, less than five months after same-sex couples began marrying in California as a result of a ruling by the California Supreme Court that denying marriage rights to same-sex couples violated the California Constitution.  Proposition 8 inserted a provision into the California Constitution stating: "Only marriage between a man and a woman is valid or recognized in California." 

Prop 8's enactment was immediately challenged in the state courts, but was upheld by the California Supreme Court as validly enacted in Strauss v. Horton, 207 P.3d 48 (2009).  However, the California court said that Prop 8's enactment had no effect on its own prior state equal protection and due process ruling, holding that same-sex couples were entitled to all the rights and benefits of marriage, and that marriages conducted prior to its enactment remained valid.  Thus, the only tangible effect of Prop 8 was that same-sex couples in California could not from November 2008 going forward form newly recognized same-sex relationships called "marriages," but they could form "domestic partnerships" that had all the state law rights of marriages.

The same week that the California Supreme Court upheld Prop 8, the American Foundation for Equal Rights (AFER) filed suit in the federal district court in San Francisco, claiming that Prop 8 violated the  14th Amendment of the U.S. Constitution.  The following year, U.S. District Judge Vaughn Walker ruled for the plaintiffs.  The Proponents of Proposition 8, who had been allowed to intervene as defendants when all the state government officials named in the complaint refused to defend Prop 8, appealed that ruling to the 9th Circuit.  Earlier this year, the 9th Circuit affirmed Judge Walker's ruling, but on narrower grounds.

Judge Walker ruled that same-sex couples have a right to marry as a matter of Equal Protection and Due Process under the 14th Amendment.  Under his ruling, the state must allow same-sex couples to marry on the same basis that it allows different-sex couples to marry.

The 9th Circuit panel, in a 2-1 ruling, held that the enactment of Prop 8 violated the Equal Protection Clause because the majority of the panel could discern no rational basis for California to rescind from same-sex couples the right to marry that had previously been recognized by the state Supreme Court, while at the same time continuing to provide same-sex couples with the state law rights and benefits of marriage.  Withholding the word "marriage" would do nothing to advance any of the interests argued by Proponents of Prop 8, wrote the court of appeals majority, since it didn't affect the state's policy of extending all marital rights to same-sex couples through the Domestic Partnership Law.  The panel majority concluded that Prop 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 Proponents of Prop 8 sought to have the case reconsidered by a larger panel of judges from the 9th Circuit, called "en banc review," but their request was denied in June.

The request for review takes the form of a Petition for a Writ of Certiorari.  The Supreme Court has discretion to grant or deny the writ.  Under the Court's rules, the Petition is granted if at least four out of the nine Justices vote in favor of review.  The Petitioner frames a question or questions for decision by the Court, but the Court is free to reframe the question if it grants review.  In this case, the Petition asks the Court to decide the question that Judge Walker decided, seeking, in effect, to by-pass the repositioning of the case by the 9th Circuit panel majority, which had disclaimed any decision on whether same-sex couples have a constitutional right to marry in the first place.

The Petition takes the form of a legal brief intended to persuade the Court that it should exercise its discretion to take the case.  The Court is most likely to take a case if the lower court ruling conflicts with other federal appellate rulings or past rulings by the Supreme Court, or the Court concludes that the case raises a question of national significance that urgently requires a definitive answer from the Court.  The attorneys for the Proponents of Prop 8 argue that this case meets all of these criteria.

Picking up an argument made by judges from the 9th Circuit who dissented from the panel decision and from the decision to deny en banc review, the Petitioners argue that the 9th Circuit panel misconstrued the Supreme Court's 1996 decision in Romer v. Evans, which the panel majority relied upon to rule that Prop 8's enactment was unconstitutional. 

Romer involved a Colorado initiative amendment that prohibited the state from providing any protection against discrimination for gay people.  The Supreme Court held it unconstitutional as an unprecedented violation of equal protection of the laws.  The 9th Circuit panel, noting the similarity of state initiative amendments depriving gay people of rights, reasoned that the result should be the same.  The panel held that the court should ask why the people of a state would withdraw rights from a specified group of citizens; what policy goals would be advanced by rescinding an existing right?  In the case of Romer, the people were withdrawing the right to seek protection from discrimination through normal political means, which gay people in Colorado had achieved in several cities through the enactment of anti-discrimination ordinances.  In the Prop 8 case, the people were withdrawing the right to marry, which same-sex couples enjoyed in California for almost 5 months prior to the vote on Prop 8.  In both cases, said the court of appeals panel, the challenged initiative amendments did not advance any legitimate policy goal, since taking away or diminishing rights was not by itself a legitimate policy goal, and thus did not meet the minimal requirements of rationality imposed by the 14th Amendment Equal Protection Clause.

In their Petition, Proponents claim that this is a misapplication of Romer, pointing out that the Supreme Court emphasized in Romer the sweeping nature of the amendment, while characterizing Prop 8 as narrowly focusing on marriage, and, as a consequence of the California Supreme Court's subsequent ruling, only applying to the term "marriage" and not to the legal rights associated with it.  The Petition argues that this broad use of Romer as a precedent threatens state marriage amendments, all enacted by popular vote, that are on the books in all the other states in the 9th Circuit, and in many other states (more than 30 in all), presenting an issue beyond the borders of California and taking on national significance.

They also argued that the 9th Circuit ruling is inconsistent with the Supreme Court's action in 1972 in Baker v. Nelson, in which it dismissed a same-sex marriage appeal from Minnesota on the ground that the right of same-sex couples to marry does not present "a substantial federal constitutional question."  On the issue of contradictions with other federal appellate rulings, they pointed out that the 8th Circuit had rejected a federal constitutional challenge to a similar state constitutional amendment that went even further than California's, banning both same-sex marriage and civil unions or domestic partnerships.  They also noted several state high court rulings rejecting similar equal protection challenges raising the issue of same-sex marriage. 

In short, the Petition does everything possible to try to persuade the Court that it is necessary for it to review this case in order to resolve inconsistencies in federal constitutional rulings on same-sex marriage amendments, inconsistencies with the Court's own prior rulings, and to restore to the voters the right to decide who can marry in their states.  As is frequently done, they also incorporated many of the substantive legal arguments that they made before the trial court about why it was rational for California voters to deny "marriage" to same-sex couples, emphasizing the idea that the state could use marriage as a means of "channeling" reproductive sexual activity.

On July 31, the American Foundation for Equal Rights issued a press release reflecting the mixed emotions of the attorneys.  On the one hand, this lawsuit was brought with the goal of getting the U.S. Supreme Court to strike down bans on same-sex marriage, so the attorneys really want the case to go to the Supreme Court.  On the other hand, their first duty to their clients is to defend the victory in the lower court so that same-sex couples will be able to marry in California as soon as possible.  The lawyers' comments in the press release reflect this tension.

David Boies, lead co-counsel together with Ted Olson, said, "Today's petition presents the Justices with the chance to affirm our Constitution's central promises of liberty, equality, and human dignity."  But Theodore Boutrous, Jr., another attorney who took a major role in the case for the plaintiffs, said, "Because two federal courts have already concluded that Proposition 8 is unconstitutional, gay and lesbian Californians should not have to wait any longer to marry the person they love.  We therefore will oppose the petition for a writ of certiorari.  However, we recognize that this case presents constitutional issues of national significance, and are ready to defend our victories before the Supreme Court."

If the Court denies the petition when it reconvenes from its summer recess at the end of September, District Judge Walker's ruling will go into effect and Proposition 8 will no longer be an operative provision of the California Constitution, so same-sex couples will be able to resume marrying in California.  If the Court grants the petition, the stay on Judge Walker's ruling will remain in effect until the Supreme Court decides the case.  Argument would probably be held sometime in the winter, and the decision would not be rendered until sometime in the spring or early summer of 2013. 

When AFER's attorneys file their response to the Petition, they are likely to point out that the question proposed by the Petition is not the question decided by the 9th Circuit, but one suspects they will not be arguing too passionately that the Court should refuse to review the case.

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