The Fate of Proposition 8

This is the fourth and final in a series of articles regarding the gay marriage issue that will likely be taken up by the Supreme Court in the new term beginning in October. There have been some rather intense comments along the way. Obviously, beliefs and opinions run high on both sides of this issue. Should Section 3 of DOMA prevail, there is no doubt that Section 2 will be next the battlefield, if not Proposition 8. Just one note: I do not write these articles in an effort to stir debate as much as I do to inform readers of the legal issues involved and to present both sides of the legal battle and underlying reasoning with a bit of personal analysis. In this way, I hope readers are more informed of the cases, the constitutional issues involved, and the possible resolutions.

As stated in earlier articles, the DOMA case out of the First Circuit Court of Appeals appears headed for the Supreme Court in the next term. The more famous of the gay marriage cases is the one involving Proposition 8 out of California. To briefly summarize, the case has morphed into something less landmark-worthy than it once was in time. However, depending to what extent the Supreme Court takes the opinion in the DOMA case, the Proposition 8 case may ultimately address the key question in the whole gay marriage mess: do gays have the constitutional right to marry? Should the Court not reach that question in the DOMA case (and they will have to strain reasoning to get to a narrow decision here since it necessarily involves the Equal Protection Clause), then the next best bet would be Proposition 8.

In 2000, California approved Proposition 22 which defined marriage in California as being between a man and a woman. The California Supreme Court later struck down that law as violating the state’s constitution on Equal Protection grounds. As a result, gay marriage was permitted and, in fact, some 18,000 such marriages were performed and recognized by the state. In response, in 2008 Proposition 8, which had identical wording to Proposition 22, passed with close to 53% of the vote with over 13 million legal votes cast. Immediately, opponents of the initiative sued to enjoin the state from enforcing the law pending appeal in Federal District Court. After considered debate and a trial, Judge Walker (himself a homosexual) ruled that Proposition 8 violated the Equal Protection Clause and that gay couples had a right to marry. Relying heavily on the Supreme Court case of Romer v. Evans, the Judge determined, based on the evidence presented at trial, that the ban on same sex marriage was predicated upon outdated prejudices regarding homosexuals in general, and gay marriage in particular. However, his decision was then stayed pending appeal to the Ninth Circuit Court of Appeals. In the interim, there was a change at the Governor’s mansion and the new Governor, Jerry Brown, pulled an Obama and decided not to defend Proposition 8. What ensued was a series of procedural maneuvers which allowed the Ninth Circuit to consider the case allowing proponents of the initiative to argue its merits. Along the way, the proponents sought to vacate the Walker ruling citing that as a homosexual himself, he should have recused himself from the case in the first place.

The Ninth Circuit Court of Appeals then issued two rulings. They first said that Walker was under no obligation to recuse himself, but that was the lesser of two findings. In a 2-1 decision before a three judge panel, the Ninth Circuit upheld the basic holding in the Walker decision. They, however, did not reach the conclusion that there is a fundamental right to same sex marriage. They did determine, however, that their reading of Romer v. Evans and trial record at the lower level left no doubt that Proposition 8 served no compelling state interest and could not be justified. Specifically, they largely agreed with the Walker ruling that the ban on gay marriage was motivated by prejudice towards and mischaracterizations of gays. However, again they stayed their ruling pending appeal to the full Ninth Circuit.

In the lead-up to the Obamacare cases when everyone was watching the Supreme Court, the Ninth Circuit denied en banc review of the three-judge panel ruling invalidating Proposition 8. It needs to be mentioned at this point, the Ninth Circuit did not address the issue of whether the right to same sex marriage is fundamental, which is the key question that needs to be decided to clear up the legal morass that exists over the entire issue. The apparent vote for full review among the eligible judges in the 9th Circuit was 21-4 against full review. That left the 3-judge panel decision standing, but yet again a stay of that finding was issued for 90 days pending appeal to the United States Supreme Court. That original 90-day period is set to expire in September unless extended. If the Supreme Court takes the case, then the stay is extended pending outcome of that appeal. Proponents of Proposition 8 intend to appeal to the Supreme Court.

Unlike the DOMA case which addresses a federal law, Proposition 8 addresses a state law, or more appropriately a state ballot initiative. There are so many procedural loopholes in this case that the Supreme Court could conceivably easily thread a legal needle and issue a narrow ruling on procedural grounds that would leave the bigger questions unanswered. Obviously, a state cannot pass a law that is violative of the Equal Protection Clause of the US Constitution even if it is approved by 100% of the voters with 100% turnout. Hence, the Proposition 8 case, although it started off as primarily an Equal Protection Clause case, especially after the Walker ruling, has transformed more into a referendum on the legitimacy of voter ballot initiatives. One of the original arguments of the opponents of proposition 8 is that a ballot initiative cannot necessarily override a state constitutional provision (as interpreted by that state’s Supreme Court) absent either a constitutional convention or legislative action. This case may very well come down to an interpretation of the California Constitution and that is best left for the California Supreme Court, rather than US Supreme Court. If that is the case and the Supreme Court (1) even takes this case and (2) decides this way, the opponents of Proposition 8 will win the case since the California Supreme Court has already ruled in its favor which prompted Proposition 8 in the first place. In essence, this can be framed as a classic state’s rights issue.

If so, while it is true it would work to the advantage of the LGBT community in California, it would not work to their advantage in 38 other states that do not allow same sex marriage by state constitutional provision or legislative action. It would simply leave the decision on the definition of marriage to the states themselves and then to take the appropriate legal action accordingly be it through an amendment to their state constitution, or through legislation. I am well aware that most conservative thinkers dislike the notion of “losing the battle to win the war.” They would like to see gay marriage bans left solely for the states to decide and perfectly constitutional, preferably with them supporting such bans. They would like to see a definitive declaration from the US Supreme Court that there is no constitutional right to same sex marriage because it affects no suspect class nor does it affect a fundamental right. Unfortunately, because the case out of California has been so watered down through the appeals process, that will not happen with Proposition 8 as the vehicle. As stated earlier, DOMA is the better vehicle.

When appeals are presented to the Supreme Court, they are presented as a question or series of questions for the Supreme Court to consider, debate, and rule upon. Since the appeal has not even been filed yet, we do not know the breadth of those questions. However, we can get an inkling of how wide or narrow decision the Court will consider when they accept the DOMA case. Assuming the Proposition 8 appeal comes in sometime in August or September, it will most likely not even be scheduled for consideration during conference until later. By then, DOMA- which is on the September 24th Conference calendar for consideration- may have been accepted. The Court, upon review of the appeal, can accept all or a portion of any of the questions presented. If they intend to consider whether DOMA will decide if same sex marriage is a fundamental right, that would have an obvious impact on Proposition 8- indeed, all laws which ban gay marriage. In that case, they would likely hold over the Proposition 8 case pending review and deciding the DOMA case. If they grant the Proposition 8 case and not hold it over for too long into the term, that would indicate that the DOMA case will be narrowly tailored with no sweeping proclamations. They would then likely take the Proposition 8 case since addresses fundamentally different issues than the DOMA case. Even still, they can then use the Proposition 8 case to make that sweeping proclamation, if they so choose.

Suffice to say, its a convoluted mess that needs to be resolved one way or the other. As long as the Supreme Court avoids the issue of whether the right to same sex marriage is fundamental, or whether homosexuals are a suspect class- either of which would trigger strict scrutiny of the laws, in which case they would fail most likely- the debate will continue.