Ninth Circuit Leaves Ground Unbroken in Striking Prop 8

GLBT Week in Review February 8, 2012
BY ANN ROSTOW


Ninth Circuit Leaves Ground Unbroken in Striking Prop 8

As you know by now, the U.S. Court of Appeals for the Ninth Circuit has struck Prop 8 as unconstitutional, sending the case into another series of appeals. We’ll see in coming days if the bad guys will appeal the decision to a larger group of Ninth Circuit judges, or whether they will appeal directly to the U.S. Supreme Court. Both the full Ninth Circuit and the High Court have the option to simply decline review, leaving Tuesday’s opinion the final word on the matter.

Not only would that be the best outcome, Bay Times legal experts agree, but it might also be the likely outcome. Tuesday’s ruling was so narrow that you could feed it through the head of a constitutional needle. It was crazy narrow, skirting the entire meat of the case--- for whatever reason--- and leaving us with the kind of feeling a tennis player gets when her opponent defaults the semi-final match.

Yes, we expected a narrow ruling on Prop 8 out of the Ninth Circuit, but I’m not sure anyone expected a ruling this narrow. Let’s be clear, the 2-1 court majority came to only one clear conclusion: if a state provides all the rights of marriage to gay couples, and subsequently votes to strip them of the title of “marriage,” that action is unconstitutional.

The court ducked the central question of whether marriage for gay couples is a fundamental right. It then skipped over the equally crucial issue of whether sexual orientation should be considered a “suspect class” for purposes of equal protection analysis. Instead, it grasped onto the tiniest possible justification for its ruling and shrugged aside the rest with the time honored excuse that it need not answer further questions after the decision is made on another basis.

Well, a win’s a win, right?

Yes and no. Yes, because a loss would have been horrible and yes, because we are one step closer to restoring marriage equality throughout the Golden State.

No, because we finally brought a significant set of gay rights issues to a federal appellate court, and could not walk away with a good precedent. Indeed, there’s an argument to be made that this ruling could be used by anti-gay lawyers in the future to argue that marriage is not a fundamental right and that sexual orientation should not be protected, simply because the majority avoided those issues.

That’s exactly what our legal opponents have done with Lawrence v Texas, the 2003 Supreme Court decision that outlawed sodomy bans without clarifying whether gay couples have a fundamental right to privacy and without delving into the legal standards for reviewing gay discrimination. We all high fived each other after Lawrence. But while its benefits sure outweigh its faults, it’s proved something of a disappointment as a legal precedent.

Same thing here.

I’m not even going to discuss the weird dissent by the one Republican appointee on the panel, Randy Smith, who seemed to suggest that there might be a constitutionally acceptable reason to limit marriage to child bearing couples. Remember that the rights and responsibilities of marriage already flowed equally to gay and straight couples in California thanks to the domestic partner law, ergo these factors were not at issue.

If Lawrence has been a mixed bag, the reverse might be said for Romer v Evans, the 1996 High Court ruling that struck Colorado’s statewide antigay amendment. Colorado voters had seen fit to ban the future passage of gay rights laws throughout its state and local governments. That vote, said the 6-3 Romer Court, was unconstitutional, denying an unpopular minority access to the political process based on nothing more than ill will.

Tuesday’s Ninth Circuit ruling relied heavily on Romer v Evans. In fact, the opinion was almost structured as a mirror image of that decision, coming across not as ground breaking, but as a simple confirmation of settled law. For that reason alone, the U.S. Supreme Court would be less likely to take direct review of this decision. They’ve been there and done that.

As for the full Ninth Circuit, I don’t know what they’ll do. It takes a majority of active judges to accept an appeal, and once they do so, they are free to come up with their own analysis, so much could change if the full court takes on the challenge. Although the Ninth Circuit has a liberal reputation, they’re not really that much more liberal than the country at large. That said, I’d rather see this case in the hands of the full Ninth Circuit than any of the others.

Finally, I was struck by the fact that the Ninth Circuit’s logic was the exact opposite of the reasoning used by the California Supreme Court a few years back, when they were asked to strike Prop 8 under the state constitution.

The California justices, who had mandated marriage equality back in 2008, ruled that the voters had the right to pass Prop 8 because the proposition did nothing more than redefine the word “marriage” to apply to heterosexuals. The impact, implied the justices, was inconsequential, a mere matter of semantics that did not rise to the level of a constitutional infraction. By contrast, the Ninth Circuit has said, in effect, that the symbolic nature of Prop 8 is the very reason that it cannot be justified by anything other than homophobia.

Is marriage just a word? Does that mean voter and lawmakers can play around with it to their hearts content as long as they leave rights and benefits intact? The Ninth Circuit is correct in this debate. Marriage is not just a word, it’s a status and a unique symbol of social equality. They may have ruled narrowly, but on this point they took an essential stand. Would that the California Supremes had done so three years ago.
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Whither Washington?

I suppose this ruling is one of the better possible outcomes. We all feared the all-encompassing type of decision that outlawed state restrictions on marriage equality in any context. Such a wide ranging opinion would have surely wound up before the High Court, where the justices would have found a middle ground that would likely have included language limiting gay rights going forward.

A better strategy is to pile up victories until the High Court is faced with an all or nothing dilemma. As much as we tiptoe around the High Court, I don’t think anyone fears a “nothing” verdict from the current group of justices. Justice Kennedy, the center right author of both the Romer and the Lawrence decisions, may take a step back from his gay rights jurisprudence, but he can’t be pushed that far. Let’s imagine, for instance, that the Court is asked to review a set of federal appellate court decisions that overturn the Defense of Marriage Act. I can’t imagine that Kennedy would not provide the fifth vote in our favor in such a situation.

Believe it or not, I have often been wrong in my legal forecasts, so you might just ignore the previous speculation. That said, I might as well continue the idle court chatter with another interesting twist. Washington! A state which is part of the jurisdiction of the Ninth Circuit and where federal courts are thus bound by the Prop 8 ruling.

As I write, the Washington house of representatives is about to pass a marriage equality bill that has already passed the senate. Barring some screw up, the bill will go to Governor Gregoire’s desk, where it can sit for up to five days. Since Gregoire is our champion, she will sign it. Some have speculated that she will pick Valentine’s Day for the ceremony, which seems an irresistible bit of political theater.

In principle, the marriage bill would take effect on June 7. In practice, we expect the anti-marriage crowd to start drumming up support for a repeal (they need about 240,000 petitioners by July 6) or for an antigay initiative defining marriage as heterosexual (they need about 120,000 petitions by June 6).

Here’s the fun twist. If our opponents wind up qualifying an antigay initiative, marriages will still begin on June 7, and continue through the election. If such an initiative were to pass, Washington would find itself seemingly in violation of the narrow ruling we just saw out of the Ninth Circuit. After all, Washington’s domestic partner law provides the benefits of marriage, so an initiative would do nothing more than strip gays of the name “marriage,” violating the U.S. Constitution in the process.

The alternative, a simple repeal, would put the marriage bill on hold. In that situation, we could not technically argue that the word “marriage” was taken away from gay couples because gay couples would have been prevented from getting hitched during the campaign. But would that matter? Would it not be viewed by a federal court as essentially identical to the unconstitutional Prop 8 vote?

Keep in mind that Washington voters refused to repeal the domestic partner law when given the chance back in 2010. I know that partner rights are more popular than “marriage,” but it still seems like a heavy lift in view of the Ninth Circuit’s decision and the strong corporate support for marriage rights in the Salmon State.
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The Party’s Over

So, Mel and I just came back from our Olivia cruise. Let me tell you something. Those cruising girls are insane. It was like summer camp for hungry drunk lesbians. And we were right there, of course. That said, we were not the ones who showed up for the 45-minute rain forest trek with a pitcher of vodka tonics at eight am. But we were the ones doing the conga line past the guy standing on a chair pouring shots of something blue into our open mouths at ten the next morning.

OK. I was the one in the conga line, not Mel. But she was sitting at the pool bar drinking something out of a 36-inch souvenir plastic palm tree. And if I’m not mistaken, her consumption had already descended past the writing on the tube that said: “I’m on vacation,” and was somewhere between “Nobody knows me,” and “I’m looking sexy.”

Don’t get me wrong. We had our elegant moments. The food was fantastic. And there were numerous educational outings and meetings, none of which we attended, but still, they were available.
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Elsewhere

We’re still working on marriage equality in New Jersey, where votes in both houses are expected next week. Governor Christie has pledged a veto, but there’s a chance we might be able to override his red pen. If not, Christie and others are advocating for a proactive public vote on whether to allow marriage equality. We, in turn, are wary. Even though a plurality supports marriage in the Snookie State, we know how those votes can go.

Mainers are more optimistic about their pro-marriage vote next November. Activists have deliberately put marriage on the ballot after barely losing in 2009 (or maybe 2010). I could look it up, but you get the picture.

We’re also working towards a marriage equality vote in the Maryland legislature, while New Hampshire bad guys are still intent on taking marriage away from gay couples in their state, and shredding the previous partner law in the process. Governor John Lynch has pledged to veto such a bill, and I’m not clear on where it stands.

Finally, there were some other good rulings this week. The U.S. Court of Appeals for the 11th Circuit upheld the Center for Disease Control’s right to fire a counselor who refused to treat a lesbian. A Massachusetts appellate court ruled in favor of a married lesbian mom in her fight with the biological mother of their child. The court ruled that their marriage was enough to confer parenthood, and that no second parent adoption was necessary for shared custody.

I think there were a couple of other interesting news items, but if so, they are lurking in the shadows of the Prop 8 decision and I’ve missed them. Maybe next week.
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Ann’s column is available every week on sfbaytimes.com. You can reach her at arostow@aol.com.