Today the 9th Circuit, that conservative boogeyman of liberal judicial activism, found Prop 8 to be unconstitutional. If I may be so immodest, for some legal background about LGBT issues, I would urge you to check out my previous posts, here, here, and here. Sorry for any redundancies.
II. A [Very] Little History Which You Probably Already Know
In June 2008, the California Supreme Court issued a very long and beautiful (in a sense) opinion called In re Marriage Cases, which found that a state ban on same-sex marriages violated California’s state constitution. The only way to overturn the opinion would have been to amend the state constitution, which California voters did via a ballot initiative called Proposition 8 (or Prop 8). Between the California Supreme Court’s decision and the passage of Prop 8, California same-sex couples had an approximately three-month window to get married. California already had a strong domestic partnership law which Prop 8 did not affect, and the core holding of In re Marriage Cases, that sexuality was a protected class subject to strict scrutiny review, is still valid to this day. Nevertheless, Prop 8 was an awful, gut-churning defeat–an injury only compounded when Maine voters overturned their state’s same-sex marriage law the next year.
Following Prop 8, the LGBT rights movements of California were in chaos, in part because gay rights organizations have a surprisingly difficult time working together (there was much finger pointing over who dropped the ball with Prop 8), and in part because they lacked a strong leader and a clear strategy. As a whole, they lacked a clear response to Prop 8. The LGBT groups, with Equality California at the forefront, decided not to go back to the ballot box immediately, to the anger of many. There was a half-hearted attempt to get the California Supreme Court (Strauss v. Horton) to overturn Prop 8 as unconstitutional. By definition that was impossible. The Court slapped the effort down, although it did hold that the marriages performed in the above-mentioned three-month window were still valid marriages and domestic partnerships.
The only real option to overturn Prop 8, a lawsuit in the federal courts, was the one option that the gay rights groups did not want to pursue. Despite the fact that the Supreme Court had handed down such landmark LGBT rights opinions as Lawrence v. Texas (striking down sodomy laws) and Romer v. Evans (striking down a state constitutional amendment that banned LGBT protections), the general consensus was that the Supreme Court majority was too conservative and hostile to give its imprimatur to same-sex marriage. That is why for years the Defense of Marriage Act (DOMA) was never seriously challenged in federal court despite its blatant unconstitutionality.*
In May 2009, two couples, backed by the newly formed American Foundation for Equal Rights (AFER), filed suit in federal court to overturn Prop 8. The suit was originally called Perry v. Schwarzenegger; following the most recent gubernatorial election it is now Perry v. Brown. To the majority of gay rights groups and supporters this lawsuit was a catastrophic idea (see my first footnote), a feeling exacerbated by the fact that AFER’s attorney was Theodore Olson, the former Solicitor General for George W. Bush and Bush’s attorney during Bush v. Gore. Olson, aware of the suspicion of him, brought in David Bois, his Bush v. Gore opponent, as co-counsel. This did not alleviate the grumbling given that neither Olson nor Bois were involved in the LGBT rights movement before, but it was Olson and not groups like Equality California who reminded the nation “justice deferred is justice denied.” And it was Olson and Bois who mercilessly tore apart any defense (and defenders) of Prop 8 at trial. In one of life’s little ironies, the most forceful advocate and leader in the response to Prop 8 is a heterosexual, conservative Republican.
In the District (trial) Court, Olson and Bois won handily, aided by a state government (the nominal defendant) that opposed Prop 8 and a woefully weak case provided by the genuine Prop 8 defenders. Additionally, both are brilliant attorneys who crafted a strong case that had the law on its side. As it happened, the presiding judge, the now-retired Vaughn R. Walker, is a gay man. I bring this up for two reasons: (1) after he retired and formally came out (Walker was openly gay but did not address questions about his sexuality until after he retired), the backers of Prop 8 tried to get his opinion discarded on the grounds that he had a vested interest in the decision; and (2) as a gay man, Walker probably thought a lot about the issue for years if not decades.
After Walker announced his decision in August 2010, a resounding victory for the plaintiffs, AFER, and the LGBT community, the opponents of Prop 8 appealed to the 9th Circuit. Since the decision, there has been a gluttony of little back and forth procedural motions about video tapes, recusals, and who has the right to be a part of the lawsuit (the issue of “standing”) as well as a detour through the California Supreme Court for an advisory opinion. None of this is important for what I am writing about today, but I would be remiss if I didn’t mention it.
III. The 9th Circuit Opinion
Today the 9th Circuit finally handed down its decision and upheld Judge Walker’s opinion. You can read it for yourself here. The 9th Circuit’s decision itself was very narrow; the court held that Prop 8 is unconstitutional, not because same-sex marriage is a fundamental right denied to a protected class, but because Prop 8 took away a previously existing right. Using the Supreme Court’s decision Romer v. Evans as its analytical focus, the 9th Circuit found that Prop 8 was so blatantly discriminatory in its nature and so pervasively harmful, that there could be no motive for the law other than animus–an unacceptable rationale under Romer.
Amidst all the joy, here is what my fellow liberals and gay activists will not say: the 9th Circuit decision is not great in its legal reasoning and a very poor as a piece of legal craftsmanship. It’s well-meaning but sloppy. Worse, the opinion is glib (I particularly object to the Groucho Marx quote), and that is very disrespectful for an issue of such magnitude. Given who the author is, I cannot say I am surprised. Conservatives have long railed against Judge Stephen Reinhardt, and this opinion will not change their minds one bit. Reinhardt will not care; he sees himself as the rearguard of the Warren Court’s judicial revolution. In truth, Reinhardt is less a 9th Circuit William Brennan and more a liberal doppelgänger of Antonin Scalia–a cranky and abrasive loudmouth who prefers to wield his pen as a weapon rather than to use his acumen to shape the law.
To be fair to Reinhardt, the narrow construction of his opinion indicates that for once he actually cares what happens next. Reinhardt could have written a much broader opinion holding that same-sex marriage is a fundamental right under the Constitution. It would have won plaudits from the left, opprobrium from the right, and immediate retaliation from the Supreme Court. In most instances, Reinhardt would not care how the Supreme Court reacts; his overly broad opinions are his attacks on the increasing conservatism of the federal judiciary. This time was different though; Reinhardt understood what was at stake and the dire consequences of overreaching. Reinhardt may be a cranky, disgruntled coot, but he is also an unwavering ally of the LGBT community. He knew there was no room for judicial grandstanding and tailored his opinion accordingly. Perry only affects California and only because Prop 8 altered the state constitution to deprive a specific group (protected by California law) of a fundamental right that they had previously been granted.
Therefore, what troubles me most about today’s decision is not Reinhardt’s opinion but rather that the 9th Circuit panel was not unanimous; if it were unanimous, I would feel more secure about this case’s chances before the Supreme Court. The 9th Circuit opinion was divided between two liberals and one conservative, and that presages a similar split among the Nine Justices where the balance between liberals and conservatives is less favorable.
I agree with the opinion of Towleroad’s Ari Ezra Waldman who wrote that today’s decision is “the most significant advancement in the fight for marriage equality in American history to date.” And I agree with his analysis of the case. Where I disagree with him is when he says that regardless of what happens next, the court “gave us a remarkable statement of gay rights, one that will have an enduring future regardless of the end result of Perry v. Brown.” He’s wrong. If the Supreme Court overturns the 9th Circuit, the most important judicial opinion in American gay legal history will be swept aside and have no more authority than a Paul Krugman op-ed.
IV. The Perry Effect
The big question today is whether the Supreme Court Justices will take this case given how narrow it is and how risk averse they are. Let me completely dispel any doubt: they will.
Perry, as Waldman correctly points out, is really a proxy fight for national same-sex marriage and LGBT equality. Given how significant Perry is, narrowness be damned, the Supreme Court cannot dodge it. With a slew of DOMA cases working their way through the federal courts (see my first footnote below) and more potential marriage equality cases like Perry on the horizon, the Justices are going to have to start making decisions whether they want to or not. Off the top of my head, I can think of five states where Perry could very well have an impact in not-too-distant future.**
No matter which side wins at the Supreme Court, Justice Anthony Kennedy will write the opinion. He is the so-called “swing vote” at the Court in cases which divide dogmatic liberals and conservatives, and he is in the perfect position to get an assignment that he no doubt craves (Kennedy has his eye firmly fixed on history). If he sides with the four liberals, he is the most senior Justice and will decide who writes the opinion. If he sides with the conservatives, no doubt Chief Justice John Roberts will assign him the opinion to keep his vote. Truthfully, he is most qualified to write it; federal gay rights case-law is based around the jurisprudence of Anthony Kennedy. It was he who penned the decisions in Romer and Lawrence, and no doubt briefs on both sides will copiously quote his opinions. (The reason the 9th Circuit’s analysis was almost completely based on Romer is because Reinhardt is trying to send Kennedy a message.)
Because of his central position in gay rights cases, it is also Kennedy’s fault that there is so little clear guidance. As revered as Lawrence is, that most sacred of sacred cows actually produces very little milk. Lawrence (to the consternation of Rick Santorum) told gay people, “You have the right to exist.” Beyond that message and the opinion’s central holding–that consensual homosexual sex is protected by the Constitution–Lawrence actually says very little.
Had the Lawrence Court’s majority wanted to make a stronger statement about gay rights, then Sandra Day O’Connor’s concurrence, which relied on an Equal Protection argument and was a more favorable opinion in the long run, would have carried the day. Her concurrence offered a much clearer blueprint for the LGBT rights movement even though in her opinion, O’Connor (as was her wont) was noncommittal about the ramifications. Nevertheless, it was Kennedy’s opinion that garnered the majority, and since Lawrence, courts around the country, both at the federal and state level, have split on how to interpret their own cases in light of Lawrence. Is it a limited opinion based around privacy laws or is it a really an Equal Protection opinion in disguise?
It should be noted that even if the Supreme Court upholds today’s decision, the Justices can still continue to dodge the Equal Protection issue. One should not be surprised if that does turn out to be the case. Regardless, even a tepid Supreme Court opinion in Perry will offer clearer guidance than Lawrence. Eventually as the cases keep coming–and they will–the Supreme Court will no longer be able to dodge the real issues. That day is coming soon; let’s hope the majority is on our side.
* The first real attacks on DOMA are now working their way through the federal courts. The main cases are not challenging the core of DOMA–that states do not have to recognize legally valid civil unions or same-sex marriages performed in other states. Rather they are challenging Section 3, which permits the federal government to ignore state-sanctified civil unions and same-sex marriages. These DOMA suits are gateway lawsuits; because the case for Section 3′s unconstitutionality is so strong, this is an easier lawsuit to bring with the expectation of winning. The strategy behind these lawsuits is that a victory in Section 3 cases will allow for cracks in DOMA and favorable precedent from the Supreme Court. The next step would be to invalidate the rest of DOMA and then individual state laws modeled on DOMA using that favorable precedent. After that, and only after that, could there be a direct federal challenge to state statutes and constitutional amendments explicitly banning same-sex marriage. This is why the Prop 8 case was so threatening to LGBT rights groups; it put the cart before the horse in terms of legal strategy by forcing the Supreme Court to rule on the legality of same-sex marriage before the appropriate legal groundwork was laid.
** First, in Maine, GLAD and other equality supporters are trying to get marriage equality back on the ballot. Should their attempts fail, then they have (non-binding) precedent should they go to court to overturn the 2009 referendum. Second, the current New Hampshire legislature is overwhelmingly Republican, and a sizable faction wants to overturn the state’s marriage equality law. Right now there does not seem to be enough support to overturn a promised veto from Governor John Lynch, but if the legislature stays Republican and the next governor is also a Republican, then it is entirely likely that the same-sex marriage law could be overturned. Third, Washington state is on the verge of passing marriage equality. The state Senate passed the law, the House will do so tomorrow or thereabouts, and Governor Christine Gregoire promised to sign it into law. Like Maine and California, Washington has a referendum process. Given that Washington is in the 9th Circuit, if the law is overturned at the ballot box, then it is virtually certain that the 9th Circuit will overturn it under Perry. Fourth, marriage equality may or may not pass this time in Maryland. If it does, Maryland also has a referendum process. Fifth, the Hawaii Supreme Court was the first state court to find that its state constitution prohibited marriage discrimination. That decision was overturned by constitutional amendment.
Even if the Supreme Court upholds Perry, any good lawyer can find distinctions with the potential cases in the above mentioned states based on the factual and legal distinctions. Nevertheless, the odds are that if the Supreme Court upholds Perry, then victory in these other five states is almost assured should the need arise.