As you may know, the Ninth Circuit Court of Appeals found California’s Proposition 8 unconstitutional this morning. This furthers a process that will almost certainly end in the Supreme Court, with a precedent-setting ruling on the right of same-sex couples to marry. However, the ruling today is limited to the circumstances of the California initiative, according to the Ninth Circuit.
Protect Marriage, the pro-Prop 8 group who defended the initiative in court, now has two options. They can appeal the decision to an en banc panel of the entire Ninth Circuit, or they can appeal directly to the Supreme Court. Even if they go the en banc route, it is expected that the losing party in that case would appeal to the Supremes. So that’s where this case is destined, whether it sets up for a ruling in 2013 or 2014 (if the en banc route is taken first). And the expectation is that the court will rule in a very narrow vote that could come down to the swing vote on the court, Justice Anthony Kennedy.
It’s fortuitous then, and by design, that the appeals court ruling referred specifically in several cases to Romer v. Evans, a civil rights case from the Supreme Court that Kennedy wrote. That case ruled that Amendment 2, a Colorado initiative that would have stopped any recognition of LGBT individuals as a protected class, was unconstitutional. In the ruling, Kennedy wrote, “Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.” And today’s Ninth Circuit ruling says early on:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of “marriage,” which symbolizes state legitimization and societal recognition of their committed relationships. 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.” Romer v. Evans, 517 U.S. 620, 633 (1996).
The American Foundation for Equal Rights and its legal team, which includes Bush v. Gore adversaries Ted Olson and David Boies, have been using Kennedy-in-mind written briefs as part of their argument since the beginning of this case. And the Ninth Circuit picked up on it.
The court also struck down the argument that US District Court judge Vaughn Walker, who ruled initially in the case, was diminished or compromised by virtue of being gay. That sends a strong message about LGBT equality as much as the rest of the case, that courts will not fall victim to bigotry.
Whether a Supreme Court ruling will have an impact on marriage laws across the country is unclear. The Ninth Circuit ruling sought to narrow matters and confine them only to California. So it would probably be up to another case in another state to build on the precedent of whatever comes out of the Supreme Court in the case. One would think it would apply across the states, but another step may have to be taken.
As someone who sat in Vaughn Walker’s courtroom during the original Prop 8 trial, I feel proud to see the hard work of those fighting for equality vindicated.




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Excellent news, DDay!
DW
Great news. If I were the Prop 8 people I’d go straight to the Supremes because the courts are not getting any more sympathetic to them. So I think we’ll have a decision next year.
I would say, reading the decision, that it seems to waffle on the issue of whether Prop 8 and similar measures are essentially bills of attainder. The Supreme Court could rule equally narrowly in order to garner a majority, but the sensible thing would be to harmonize marriage laws across the U.S.
bmull, take a look at what bmaz has to say:
http://www.emptywheel.net/2012/02/07/9th-circuit-prop-8-decision-equal-protection-at-the-end-of-the-rainbow/.
DW
That sends a strong message about LGBT equality as much as the rest of the case, that courts will not fall victim to bigotry.
I don’t know, David. That’s taking a big picture and making it small.
I know you were there for some of the trial. I thought Teddy was doing an excellent job of reporting. (The man can type!)
So, I never understood why FDL spent money to send other people there.
As far as judges are concerned, everyone has a bias. A non-gay judge would have a bias too.
One of the things that I am sad about is all the Drawing a line in the sand thing that Everyone’s doing.
We’re all together or not.
The constant references to Romer weren’t designed just to pander to Kennedy. To qualify for Supreme Court review, a case generally has to create or reflect a split of authority among different appellate courts, or present a new, important question of Constitutional law for the Supreme Court to settle. There is no Circuit split, but a decision that said there was per se a Constitutional right to marriage equality would have been novel and far-reaching enough that the Supreme Court would definitely have taken the case.
Instead, the Ninth Circuit colored within the lines of Romer, and noted repeately how narrow its decision is. It simply applied existing Supreme Court precedent to a very specific set of facts relating to one ballot measure in one state. As a legal matter, the decision breaks no new ground, so what makes the case unique are the facts. And the Supreme Court doesn’t typically wade into factual issues. This narrow decision means that the Supreme Court would have to disregard the standards for granting review in order to take it. And it may be asked to do so in an election year, after already taking up the major political issue of health care reform, and after facing serious backlash for Citizens United. Marriage equality already exists in six states (with WA soon to follow) and D.C.; the Supreme Court probably can live with its existence in CA so long as the Ninth Circuit didn’t set any new precedent that could lead to a domino effect. That doesn’t mean the Supreme Court won’t take the case (there were also no grounds to intervene in the 2000 election dispute), but as a matter of law it shouldn’t. Four justices have to vote in favor of granting review, and I wouldn’t be surprised in the least if those votes aren’t there.
If the haters go straight to the Supreme Court, they could have their petition rejected, and the Ninth Circuit opinion will stand. I think they have to roll the dice on en banc review and hope they get six appellate judges that are sympathetic to their arguments. That gives them two chances (en banc and Supreme Court) for a win, and if they lose again at the Ninth Circuit, they won’t be any worse off going to the Supreme Court later than they are now (unless a conservative justice retires during a second-term Obama administration and is either not replaced in time, or is replaced by a liberal — and there are a lot of “ifs” in that regard).
So I would expect a petition for en banc review.
I agree. Yet isn’t this likely bound for SCOTUS simply mindful of the venue where it had been prior?
Then, if Prop 8 is again seen as a denial of rights, and overturned, it would do three things. . . I am not a lawyer, but presume to read into issues armchair-wise and beg some slack:
- Obviously, it would overturn Prop 8
- It would also confirm that any denial of marriage based upon an LGBT issue is bogus.
- It would reset the clock, so to speak, as to what sorts of things can be placed on any state ballot, whether of a state constitutional flavor or merely as regular legislation.
The second item interests me the most. It suggests that Prop 8 proponents, if they fail at SCOTUS, will have inadvertently upended every state’s marriage regime wherever it had not already accommodated LGBT marriage (i.e., the majority of states as of now).
I guess that’s poetic justice if I’m correct. Fodder for a good novel as well.
On the theme that the decision is narrow/confined to California…Just to say it seems to me that even tho this would not be a legal precedent elsewhere, the holding and the analysis are still very persuasive. Im just wondering if there may be some places that would decide a losing fight is not such a good thing. (Of course, that would not be true for those who really like a fight.) But maybe this outcome would cause a pause elsewhere….
I’m thinking the same.
But then later, at SCOTUS, similarly confining a decision to merely Calif would suggest rights in Calif are different (and more expansive) than in other states?
Pierce on the ruling…
It does indeed address several issues. I find it very exciting.
But, one of the things I heard is that the proponents of Prop 8 can take this to a full Appeals Court first. And, then depending on what the numbers are, that might determine whether the Supremes decide to hear this case. (I’m betting They would rather Not have to sit on this issue.) But, I’m not an attorney either.
Excellent procedure casenote, Doctor! Could not have said it better myself than if I quoted directly from Stern & Gressman. Stick around, please. (Or, apologies from me if you have been sticking around, since I was reduced to lurking for a couple months.)
If a vacancy appears on the Supreme Court, Obama should make it clear that he will fill the vacancy temporarily with a recess appointment if the Senate proves unwilling to confirm any of his nominees. Indeed, since recess appointments don’t require confirmation, he could appoint a liberal that would never have a hope of getting Senate confirmation. The threat of doing that might just be enough to persuade the Senate to be willing to confirm a nominee.
Thank you for the compliment.
But it is almost physically impossible to live-blog the trial proceedings for an entire day. I could not have done without David’s and Marcy’s support. The first few days when I live-blogged alone could not have been repeated for twelve days.
Always better as a team, I was very happy to have my co-bloggers in the room. Additionally, more eyes/ears/typingfingers makes for better coverage for all of FDL’s readers.
So, yeah — thanks, but let’s encourage the FDL powers-that-be to continue team liveblogging as the standard going forward, especially for court cases.
Thanks, DW, I’m over there now.
Given the narrowness of the ruling, I’ve seen several opinions that SCOTUS will be fully justified in denying ceriorari — there’s no interstate or federal issue involved in the decision. In fact, it would be odd for them to grant cert.
But the political implications for, say, Washington state are intriguing, to say the least — the marriage bill is mostly likely going to pass there and be signed into law. If opponents want to mount a campaign to repeal it, only to have it overturned by — Ta da! — the Ninth Circuit. . . . Because what they would have is almost identical circumstances.
It’s not my buck in the game, so whatever you say is probably more informed and more skin in the game than I have.
agree– to overturn the decision SCOTUS would have to find that the 9th misread or misapplied Romer and really, good luck with that…
Ah the wisdom of not overreaching…