Prop 8 Game Changer: Full Ninth Circuit Asked to Weigh In

GLBT Week in Review February 22, 2012
BY ANN ROSTOW


Prop 8 Game Changer: Full Ninth Circuit Asked to Weigh In

The plot has thickened in the Prop 8 case. On Tuesday, Prop 8 proponents asked the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel’s decision to strike the ban on same-sex marriage. We will now wait to see whether a majority of the 25 active judges on the Ninth Circuit vote to take the appeal, or whether the judges decline review.

If the Ninth Circuit says yes, the Prop 8 case will be heard by a panel of 11 judges, including Chief Judge Alex Kozinski and ten others picked at random. Since 16 of the 25 Ninth Circuit judges were nominated by Democrats, there’s a decent chance that the panel will lean to the left. As for Kozinski, he is a Reagan appointee who has demonstrated a gay friendly disposition in the past, a fluke of sorts that just increases the odds in our favor by leaving only eight other Republican nominees available for the banc. (What are the odds that six of those eight are selected by chance?)

Like their colleagues in federal appellate courts around the country, the Ninth Circuit accepts only a tiny fraction of petitions to the full court. En banc requests, as they’re called, are to be avoided unless the decision clashes with Supreme Court or Ninth Circuit precedent, or the case involves an issue of exceptional importance.

I think we can all agree that the second premise is met. And in their 50-page request to the full court, the Prop 8 proponents insist that the decision to strike Prop 8 as unconstitutional also conflicts with binding case law (which is nonsense, Bay Times analysts agree). Combine that with the fact that the issue of marriage equality is probably the most historic and interesting game in the legal arena and I can’t imagine that the Ninth Circuit will have the discipline to resist the case.

Think about it. These are the cases that appellate judges live for. They spend most of their time unraveling arcane regulatory conflicts or arbitrating one-off distinctions in the fine print of the tax code. Do you really think they’re going to avoid an exciting tangle with the constitutional status of marriage?

They won’t, but they should. Progressive judges who favor the right to marry should leave this decision alone and force the Prop 8 side to take the case to the Supreme Court as is. As it now stands, there’s a chance that the High Court would decline review of this very narrow decision, restoring marriage in California and keeping their powder dry on marriage until they confront one of our Defense of Marriage Act cases.

On the other hand, if the full Ninth Circuit takes the case, the carefully crafted panel opinion we saw two weeks ago goes out the window. Instead, the court will vacate that opinion and examine the trial court ruling from scratch. The “safe” outcome is gone, and the risk returns. We could lose. Or, we could “win” with a decision so expansive that the Supreme Court reverses the ruling with an antigay opinion.

Keep in mind that the Supreme Court can easily decline to review the Prop 8 ruling as currently written. The three-judge panel deliberately ducked all the major issues in the case, refusing to say whether gay couples have a fundamental right to marry, or whether sexual orientation deserves heightened scrutiny when equal protection is threatened. Plus, the 2-1 majority based its ruling on an old gay rights case from 1996 which is settled Supreme Court law.

All they said, legally, is that you can’t withdraw the word “marriage” from gay couples if you already provide them with all the marital rights and responsibilities. There’s no reasonable justification for such a distinction, ergo Prop 8 reflects nothing more than impermissible bias against a minority group. This analysis only applies to California (although it’s possible that the same conditions could be met in Washington if state voters kill the new marriage law next November).

In other words, the decision was not earth shattering. But what if the full Ninth Circuit decides that marriage is a fundamental right, or that strict scrutiny applies to sexual orientation cases? On one hand, it would be historic. On the other hand, the Supreme Court would have no choice but to accept review of such a monumental decision. We would face, either the final victory in the legal fight for gay rights, or more likely, a major setback that could derail much of the progress we’ve made in the last decade.

I can hear some of you say, come on! Let’s take a chance. And indeed it would be tempting to root for an all-or-nothing High Court confrontation were it not for the alternative path to victory that also lies before us. We have five major federal challenges to the Defense of Marriage Act. And we are much more likely to convince the Supreme Court to strike DOMA than to strike the marriage laws of over 40 states.

With DOMA gone, and with another Supreme Court precedent on our side, our chances for overall victory increase tremendously. To fall back on my favorite analogy, it’s as if we’ve been moving steadily up the field and now have third and two on the other team’s forty-yard line. Do we try a long pass to the end zone, or do we run the ball? Oh, and by the way, we’re in sudden death overtime, their defensive line sucks and every gay person in the country gets a million dollars if we win.

Well, I could go on and on with this topic, and I didn’t even explore the unlikely possibility that the full Ninth Circuit could rule against us. Actually, depending on their reasoning, we might have a better chance at the Supreme Court if they issued some horrible antigay decision that would be overturned by Justice Kennedy and our four champions on the left.

But keep in mind as well that a leisurely stroll through the full Ninth Circuit leads us to a point in the future where we can’t predict the composition of the Supreme Court. What if a Republican wins in 2012, and one of our five supporters leaves the bench for some reason? All bets are off in that event, and the prospects for marriage rights go south in a big way. Indeed, I suspect our adversaries decided to seek en banc review in part as a stalling tactic with this scenario in mind.

Speaking of timing, the decision to ask for en banc review probably adds more than a year to the case. All the judges must confer among themselves. They may possibly ask for briefs from our side. If they then decide to take the case we’ll have more briefing, oral arguments, and then the months spent waiting for a decision. Add another three months to petition the Supreme Court, and tack on a few months more for the Court to decide what to do. Even if things go smoothly, we’re looking at the Supreme Court’s 2013-2014 session.

By that time, the Court may have been presented with at least one of our DOMA cases, specifically the Massachusetts suit now awaiting oral arguments in April before the U.S. Court of Appeals for the First Circuit. But that case could also be sent up to the First Circuit en banc, delaying it further, and/or the High Court may wait until some of the other DOMA cases go through the appellate courts before they take review. (As I write, we are waiting for three other DOMA decisions from federal judges in California, New York and Connecticut.)

In short, God knows what will happen next. That said, it’s fun to speculate, and it’s exciting to be on the sidelines of history in the making.
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Maryland Comes Through on Marriage

I find it hard to believe that the imminent passage of marriage rights in Maryland is not the lead story this week. As you know by now, we managed to squeak through a “yes” vote on marriage in the House of Delegates, a result that inspires me to capitalize their name even though state legislative bodies are usually left in lower case.

In truth, I’ve always had a problem writing “house of delegates” because the name sounds majestic enough for caps. Last year, however, I made a special effort to avoid capitals when the marriage equality bill was pulled off the house floor for lack of support, killing our 2011 efforts to bring fairness to the Crab State. Now, even though it’s incorrect, I will give them their due. And I will even extend the courtesy to the Maryland State Senate, in anticipation of their “yes” vote later this week. (Don’t make a liar of me, guys.)

Governor Martin O’Malley is expected to sign the bill, at which point we will see if the forces of evil manage to put a repeal measure on the November ballot. I gather it’s difficult, but far from impossible, to qualify an initiative in Maryland. So we prepare for the worst.

By the way, did you know that none other than Bill Clinton was personally lobbying Maryland delegates as the vote approached last week? What a turnaround. And what a nice behind-the-scenes gesture from our former POTUS.

Over in Washington, where we won marriage rights earlier this month, hostile petitioners are scurrying around to meet a mid-June deadline for 120,000 signatures. It sure looks as if we’ll be proactively fighting for marriage rights in three states this fall; Washington, Maryland and in Maine (where our side has optimistically put an equality measure on the ballot).

We’ll also be fighting anti-marriage campaigns this May in North Carolina, and next November in Minnesota. I’m still not sure what’s going on with the effort to take back marriage rights in New Hampshire. They have the votes to do so in the newly Republican legislature, but even as they wave the gun around, they seem oddly reluctant to pull the trigger.

And finally, since this is a state recap, don’t forget that we have until January, 2014, to override New Jersey Governor Chris Christie’s marriage veto. It sounds like a long time to me.

Meanwhile, Lambda Legal’s second New Jersey marriage equality lawsuit got a shot in the arm this week, as Judge Linda Feinberg reversed herself and reinstated Lambda’s federal equal protection claim in Mercer County Superior Court. Our legal eagles are arguing that Jersey’s civil unions have not created the equality mandated by the state supreme court’s earlier marriage ruling. Basically, they’re having to relitigate the entire case from start to finish thanks to the wishy washy 2006 decision. Now’s not the time for details, unless you beg me.

I hear nothing.
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Some Other Stuff

I know I should dig into the story of the Arizona sheriff and GOP congressional candidate, who came out of the closet under accusations that he threatened his Latino boyfriend with deportation. But he strikes me as a very unpleasant character, so I will leave his story to the mainstream media.

You’ve probably heard as well that Nancy Pelosi is pushing for the Democrats to put a marriage plank in their party platform. A trusted Bay Times advisor pointed out that there’s no way she would have gone public with such a campaign without White House approval. That’s something I hadn’t thought of, but which must be true.

I can also tell you, as a Texan who pays attention to state affairs, that a state appellate court has cancelled a recall election in El Paso due to violations of election law. The recall attempt, designed to punish the gay friendly mayor and two council members, was organized by a church (which is against the law) with the help of undeclared funds (ditto). A trial court had allowed the campaign to proceed, insisting that the “will of the people” trumped the election code, but the appellate court ruled that the judge abused his discretion in the matter.

And now another dense column comes to an end, unleavened by wit, trivia or tangents. I’m sorry for that, but it can’t be helped these days. Maybe next week.
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