Thoughts on today’s Prop 8 decision
Here’s my two sentence summary:
Great for California. Makes no immediate (next 5 years) difference for the rest of the country.
Here’s my longer thought process:
(As a disclaimer, I just read through the opinion once, I don’t have it in front of me right now, I’m tired, and I’m not actually a lawyer. Also, I’m trying to make this really accessible, so it may be a little bit oversimplified. Feel free to talk to me about it if you want me to go in to more detail.)This is a really great opinion, and in the reality of today’s Supreme Court, it may be the best thing we could have possibly hoped for.
When Judge Walker, the trial court judge, issued his decision in the fall of 2010, he based his opinion on two concepts, both found in the 14th Amendment: 1) that prohibiting same-sex couples from marrying violated their due process rights to marry, and 2) that enacting Proposition 8 violated their rights to equal protection under the law. The law says that whenever you limit due process or don’t provide equal treatment under the law, the state has to have a good enough reason to do so. He further found that California had no rational basis (reason) for doing so, and therefore, Prop 8 was unconstitutional as a matter of federal law.
The first issue on appeal was related to “standing” (which essentially says that if you aren’t directly impacted by a case, you can’t be a party to it). The actual defendants in this case were the Governor and Attorney General of California as well as two county clerks, all of whom refused to defend the case because they said it was unconstitutional. So, the people who ran the Yes on 8 campaign asked to defend the case at trial, which was not unusual. However, it’s unusual for the proponents of a campaign to defend that law on appeal, so the court had to decide whether California law allowed the proponents of the law to appeal the case if the state agents refuse to do so. The court today said that they did, deferring to the California Supreme Court’s decision from last fall. I think this was the right decision, policy-wise, because if the shoe were on the other foot, we would want someone to be able to defend legislation we like that the governor might not. (You can talk to oregony more about this, as he is pretty much an expert on the issue.)
The main issue was whether Prop 8 violates the federal Constitution. Although Judge Walker found two reasons why it did (Due Process and Equal Protection) the 9th Circuit chose a third way of evaluating things, saying that because California gave same-sex couples the right to marry, and then took away that right because of their membership in a class (gays & lesbians) THAT is what violates equal protection.
THE BAD: This means that the 9th Circuit essentially took Judge Walker’s decision, which could have potentially applied to all states, and narrowed it down to just one possible state: California. No other state in the country has actually performed same-sex marriages and then rescinded the right to do so. (Although the New Hampshire legislature is trying to do that now.)
THE GOOD: Judge Reinhardt, who wrote this opinion, is fucking brilliant. Let’s be real, the odds of the Supreme Court saying that all states should allow same-sex couples to marry are not very good. I think most legal commentators would say that there are 4 solid yes votes (Breyer, Ginsburg, Sotomayor and Kagan) and there are 4 solid no votes (Scalia, Thomas, Roberts and Alito.) The big swing vote is Kennedy, and although Justice Kennedy has historically been pretty good in supporting the gays, he always does so with reservations. Additionally, he is a huge federalist, and I think the idea of the federal government telling the people of a state that they cannot, under any circumstance, change their constitution to limit marriage is one that might make him very uncomfortable. If the court were to rule against us now, it would be another generation before they would consider the issue again.
However, in phrasing the question as a matter of whether California has the right to take away the right to marry from same-sex marriage AFTER it has already extended that right, Judge Reinhardt compares this case to another case, Romer v. Evans. In Romer, Colorado had amended its state constitution by way of ballot initiative. The amendment prevented any municipalities from enforcing anti-discrimination ordinances protecting people based on sexual orientation, and was passed in response to the creation of several anti-discrimination ordinances that had done just that. Guess who wrote the majority opinion. You’re right, it was Justice Kennedy.
In Romer, Justice Kennedy said that it was unconstitutional for a state to take away rights extended to a class of individuals just because they were members of a class that is looked down upon. He even said that it didn’t matter if the rights taken away weren’t fundamental. Once rights are extended to people, the state must have a good reason to take those rights away from a class of the people, and animosity is not a good enough reason.
In other words, Judge Reinhardt set up the Prop 8 case to mirror Romer almost exactly. The odds of Justice Kennedy rejecting that argument are very slim.
In Conclusion: Because the court was able to rule on these narrow grounds, it is not supposed to rule on any other issues, such as whether same-sex couples should have the due process right to marry, or whether denying marriage equality violates equal protection if there has never been marriage equality. Courts just aren’t supposed to make decisions any wider than they have to. Still, it’s a beautiful opinion that sings the praises of the importance of marriage. And, I think, it’s much more likely to be upheld by the Supreme Court when it is appealed.
Concise précis, thank you!
(via jasencomstock)
3 months ago