What's Next for Proposition 8?

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Same-sex marriage supporters are celebrating today's 9th Circuit ruling. But the real question is whether the opinion will persuade the Supreme Court.

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Anyone surprised by the tenor and base of Tuesday's same-sex marriage ruling hasn't been paying much attention to the years-long legal battle over California's Proposition 8, the 2008 ballot initiative which sought by popular vote to end the Golden State's brief, court-sanctioned recognition of gay marriage. The 2010 trial resulted in a rout of Prop 8's forces. So, naturally, a panel of the 9th U.S. Circuit Court of Appeals, the left-coast bastion that conservatives love to hate, was going to follow suit and continue to block the enforcement of Prop 8.

The only serious question, in the 552 days between the trial court's ruling and today, was how far the 9th Circuit would travel, doctrinally, in declaring Prop 8 to be an unconstitutional violation of the due process and equal protection rights of same-sex couples. Would it follow the logic and reasoning of U.S. District Judge Vaughn Walker, the Republican appointee who presided over the trial in this case and then had to defend himself against allegations that he was biased because he is gay? Or, would the 9th Circuit strike out on its own?

In the colossal wake of Perry v. Brown, 133 pages of fur and teeth, the best answer I can offer today is that the federal appeals court's majority sought to thread a needle between recognizing the constitutional rights of certain same-sex couples to stay married and respecting the current equal protection jurisprudence of Justice Anthony Kennedy, the Republican appointee and native Californian, whose vote everyone agrees ultimately will decide the fate of Prop 8 and therefore the fate of same-sex marriage in America.

The 9th Circuit's ruling is much narrower than was Judge Walker's ruling and clearly aimed at Justice Kennedy's jurisprudence in cases involving discrimination based upon sexual orientation. The dissenting opinion, voiced by the lone Republican appointee on the panel, was notable for its reliance upon theories -- about the need to buttress "traditional marriage" at the expense of same-sex marriage -- which got nowhere at trial. Meanwhile, nothing that happened Tuesday leaves anyone in California in any less legal limbo than they were in on Monday.  

You could say the "liberal" court found the most "conservative" way to resolve this case in favor of same-sex marriage -- a "third" way, the 9th Circuit wrote. And you can also say the ruling today will do nothing to end the legal and political debate on this topic. The 9th Circuit will still be blistered as liberal by same-sex marriage foes. And foes of Proposition 8 will still have to wait for another ruling or two before they can finally pronounce the thing dead. Fortunately, the justices won't likely have to face the case until next term, at the earliest.

The Ruling
 
Here's how the 9th Circuit tried to steer the case toward Justice Kennedy's comfort zone. Instead of declaring that marriage was a fundamental right owed to all same-sex couples, a right which the Supreme Court has not yet recognized, the majority focused instead upon the tens of thousands of same-sex couples who are legally married today in California but whose marriages would be nullified by Prop 8. Once the government affords a group of people such a right, the 9th Circuit said, it cannot by popular vote take back that right.

Of Prop 8, Judge Stephen Reinhardt wrote early in his opinion:

It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized part, an important right -- the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less.

And then later, on pages 40-42:


Before Proposition 8, California guaranteed gays and lesbians both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity. it did so by superseding the Marriage Cases and thus endorsing the "official statement that the family relationship of same-sex couples is not of comparable stature or equal dignity to the family relationships of opposite sex couples."

The question we consider therefore is this: did the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away form same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage' and to compel the State and its officials and all others authorized to perform marriage ceremonies to substitute the label of 'domestic partnership' for their relationships?

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

When Judge Reinhardt mentions the "Marriage Cases" he means the seminal California Supreme Court rulings in 2004 which first recognized the legitimacy of same-sex marriage in the Golden State. Because Prop 8 was designed to take away those court-recognized rights, the 9th Circuit ruled Tuesday, the popular will expressed in 2008 had to give way to the Bill of Rights. Whatever this theory says (or doesn't say) about same-sex couples who want to get married in California in the future, it's a clear cover of protection for those couples who already are. The 9th Circuit giveth. And it taketh away, too.

The Justice

It may be only a few days, I suppose, before Prop 8's supporters will begin to prepare their arguments for the Supreme Court. There they will have to answer first to Justice Kennedy, the eternal swing vote, and the fellow who wrote the majority opinion in Romer v. Evans, a landmark 1996 legal victory for gay rights advocates. The ruling struck down a Colorado initiative that had sought by majority vote to sweep away local government protection from discrimination based upon a person's sexual orientation. Here is just a part of what Justice Kennedy thought of the effort:
 

It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.

Then, seven years later, in 2003, Justice Kennedy wrote the majority opinion in Lawrence v. Texas, another precedent-changing case which struck down the state's sodomy law. It's difficult to go even a paragraph in Romer or Lawrence without sensing Justice Kennedy's concern for victims of discrimination based upon their sexuality. That's why Prop 8's supporters are in more trouble than they'll admit as they head toward Washington. Each side must have Kennedy in its corner to win. And he's clearly leaning in one direction.

The majority wants Justice Kennedy to see Perry as a natural successor to Romer -- in both cases popular will endorsing the limitation of rights previously afforded to what Judge Reinhardt called a "disfavored" group. Judge N. Randy Smith, in dissent, wants Justice Kennedy to distinguish Romer from Perry -- the former being about voters rolling back anti-discrimination laws and the latter being about voters defining marriage. Just wait. You'll be able to cite chapter and verse of Romer before we are through.

Between today and Prop 8's D-Day at the Supreme Court a lot of lawyers will be paid a ton of money to try to steer Justice Kennedy either toward or away from Romer. I'm sure that matters on some level, but I'm not sure it will make a difference. Right now, I believe, there are at least five votes at the Supreme Court that will recognize the validity of same-sex marriage in some form. It is even conceivable that Justice Kennedy would lead the Court beyond Romer and thus beyond where the 9th Circuit took it Tuesday. Don't laugh. Stranger things have happened.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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