Just where is the Prop. 8 case?Politically Aware, Top Highlights Thursday, July 26th, 2012
Commentary: Politically Aware
While legal scholars continue to argue about whether the Supreme Court decision to uphold the Affordable Care Act (ACA) simultaneously gutted the Commerce Clause, we can turn what’s left of our tolerance for mind-numbing legal analysis back to Perry v. Schwarzenegger, the federal court challenge to Proposition 8.
To recap, Proposition 8 is the 2008 referendum that defined marriage as between one man and one woman in the California Constitution. It is currently unconstitutional based on the decision of a three judge panel of the Ninth Circuit Court of Appeals upholding District Judge Vaughn Walker’s decision invalidating it. The proponents of Prop. 8 requested an “en banc” hearing by a larger panel of justices, which the Ninth Circuit declined, but stayed their decision 90 days for possible appeal to the Supreme Court.
More than 50 days have passed with no overt action. They may just be drafting and editing briefs. They may also be arguing whether to risk appeal at all, given the inherent risks and limited upsides.
The proponents dream scenario is that the Supreme Court upholds Proposition 8 in a way that tells the entire country that marriage is only between a man and a woman. This seems like a stretch, particularly in light of Justice John Robert’s ACA opinion that took clear shots at what the federal government can force states to do. Justice Anthony Kennedy went even further, refusing to find any way to validate Obamacare. Given the centuries of precedent for letting states decide who they will marry, Kennedy and Roberts seem more likely to overturn the Defense of Marriage Act than to expand Proposition 8.
The next best thing for the “traditional marriage” crowd would be a finding that the constitutional promises of equal protection and due process don’t demand marriage equality. Same-sex marriage becomes illegal in California for the time it takes to overturn it at the ballot box, and other states keep the status quo of working through their constitutions and legislatures. Though it’s certainly a sad day for LGBT Americans, a brief return to the status quo isn’t much of a victory given the risks.
Those risks include a limited or sweeping victory for marriage equality. The limited victory is probably the most likely outcome: Kennedy joins the liberal block in upholding the Ninth Circuit’s narrow opinion, restarting same-sex marriages in California, and possibly in a few other states where marriage laws were passed and overturned, or where “everything but marriage” civil union laws exist. The newly legacy-minded chief justice might even join the opinion to put his court tepidly on the right side of history.
The limited decision seems most likely because Judge Stephen Reinhardt basically gift wrapped his Ninth Circuit opinion in Kennedy’s Romer v. Evans and Lawrence v. Texas decisions, sticking on it a little note that said “I just did what you told us.” But the door is also open for the court to strike down all same-sex marriage bans. If Romer and Lawrence represent a compromised form of Kennedy’s support of freedom, not it’s limit, he might lead the court right through that door. Even Justice Antonin Scalia, in dissent, admits that marriage equality is a natural consequence of Lawrence.
If the proponents do choose to appeal, the justices will do a similar risk analysis. Four judges have to vote to hear a case. If Kennedy doesn’t tip his hand, why would the four conservatives risk invalidating same-sex marriage bans? Why would four liberals risk re-instating Prop. 8? For a body that prefers narrow, incremental decisions, letting the Ninth Circuit legalize same-sex marriage in California seems fairly risk-free. Lest we forget, the universe did survive 5 months of California marriage equality.
For the Prop. 8 proponents and his colleagues on the court, it all seems to come down to “What would Kennedy do?” And it well might. Or not. As the ACA case showed, predicting what Kennedy will do is a dangerous game.
July 31, update: The anti-marriage proponents of Prop. 8 just filed their petition asking the U.S. Supreme Court to hear our case. Both the Federal District Court and the Ninth Circuit Court of Appeals said, unequivocally, that Prop. 8 serves no purpose other than to single out gay and lesbian Californians for discriminatory treatment. Prop. 8, and laws like it, cannot stand. Help AFER defend the two decisions that ruled Prop. 8 unconstitutional. Make a donation today.
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