Now that a Ninth Circuit panel has ruled that California’s ban on gay marriage is unconstitutional, it seems inevitable that the ruling on Proposition 8 will eventually be appealed to the Supreme Court. But whether the Supreme Court agrees to hear it is another story.
At this point, proponents of Prop 8 have fourteen days to decide whether to petition for a rehearing. If granted, an eleven-judge panel of the Ninth Circuit will hear the case, which could take another six months to a year. If the initiative’s supporters choose to go straight to the Supreme Court, four of the nine justices would have to vote in favor of hearing the case for it to be taken up.
Judge Stephen Reinhardt, who wrote the majority opinion for the 2-1 ruling, determined that the initiative violated the Equal Protection clause of the 14th Amendment because it “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The panel also declined to rule on the broader question of whether any ban on gay marriage would be unconstitutional, which could have had implications in other states, “because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.”
“This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds,” Reinhardt wrote.
Several California law professors speculated to TPM that this “narrow” focus of the ruling could mean that the Supreme Court will decline to hear the case, since the ruling is so limited to California.
Professor Jane Schacter at Stanford Law School told TPM that “the big question” is whether or not the Supreme Court will agree to hear the case, and though at this point it’s “guesswork,” the narrowness of the opinion makes it less likely that they will. “It’s much more grounded in the specifics of the California ruling,” she said. For one thing, Schacter said, the Ninth Circuit’s opinion emphasizes that the right of same-sex couples to marry had been first granted, then eliminated. For another, unlike most other states, California already essentially granted all of the rights of marriage to same-sex couples, just under a different name than “marriage.” This means that Prop 8 was simply about the designation of same-sex unions as “marriages.”
“Those two things are somewhat peculiar to California,” Schacter said, meaning that the opinion doesn’t necessarily provide the basis for a nationally recognized right for same-sex couples to marry. “Because of that, the Supreme Court may feel the stakes are limited, and it’s not as necessary for them to get involved,” she said.
On the other hand, because this case is very high-profile and California is an influential state that “tends to set trends,” the Supreme Court “may decide to take it,” Schacter added.
And should the Court decide to take it, there is reason to believe that the language of the opinion will hold particular appeal to one specific Justice. “This decision was written by Judge Reinhardt more or less for Justice Kennedy,” Schacter said.
Kennedy wrote the majority opinions for Lawrence v. Texas, the landmark 2003 case that recognized an individual’s right to privacy by overturning a ban on sodomy in Texas, and Romer v. Evans, a 1996 case that found it was unconstitutional for Colorado to have a constitutional amendment, passed by voter referendum, that prevents the government from passing laws to protect gays and lesbians from discrimination.
The Prop 8 decision is “saying to Justice Kennedy, ‘we’ve written the kind of incremental, limited decision, moving the ball forward” on gay rights “that you’ve written in the past, without writing an opinion that nationalizes same-sex marriage.” The “narrow character of it may have special appeal to Justice Kennedy,” who is often the swing vote on the court, Schacter said.
Lecturer in Residence Joan Heifetz Hollinger at Berkeley Law School similarly demurred that “no one knows for sure” what the proponents of Prop 8 will do after Tuesday’s loss, and that she herself has been a “total agnostic” in terms of predicting how this case will go.
“I think it will depend on their guess and their estimate of what will happen if they appeal to the Supreme Court,” Hollinger said, and “if they do that, the U.S. Supreme Court does not have to agree to hear this case, because the way in which the panel crafted it is narrowly focused on California, and on the consequences of Proposition 8 for California.”
Specifically, Hollinger said, gays and lesbians already enjoyed the right to marry and the “rights and attributes” of marriage, and by passing Prop 8 the people of California simply said “sorry, you cannot use the ‘M’ word.”
“[The Ninth Circuit] did not issue a much broader decision, which might have said something like, there’s a fundamental right to marry under the federal Constitution, which no state can take away,” she added.
“Because of the California focus, it’s not at all clear that the U.S. Supreme Court would agree to hear an appeal. There’s no competing opinion from another federal court of appeals” that the Supreme Court would have to reconcile with the Ninth Circuit’s, and “the likelihood of having a competing opinion is low, at least for the short term,” because there is currently no other federal litigation on the same-sex marriage question.
In a conference call with reporters on Tuesday, attorneys David Boies and Ted Olson, who represented the American Foundation for Equal Rights and the two same-sex couples challenging Prop 8, agreed that the narrow focus of the opinion might convince the Supreme Court to pass on this case. “The grounds for the opinion, I think, do make it somewhat less likely that the Supreme Court will take it,” said Boies, because it “just applies to California,” which has a number of characteristics that are different from other states, “including that citizens of California were clearly entitled to marriage equality and then that right was taken away.”
“The Court might not want to try to take this issue on on those facts, and might want to wait for a case on a more general issue that the court here did not have to face,” Boies said. But, he later added, “the reasoning of the case is reasoning that would clearly support a national right to marriage equality.”
Olson agreed that the Court might not be able to resist, especially since parts of the opinion can be more broadly applied. He cited page 77 of the opinion, in which Reinhardt writes that “Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.”
“That language resoundingly reflect the arguments that we were making that this is discrimination that takes away a fundamental right and takes away equal protection,” Olson said. “In that sense, it’s a very broad and significant and resounding opinion.”