The Supreme Court and Prop 8

On November 4, 2008, Barack Obama was elected president and California passed the unconscionable Proposition 8. Four years later, Barack Obama has been re-elected, but the legal status of same-sex couples in California remains in limbo.

And that limbo continues for at least several more months, because today the U.S. Supreme Court announced that it will hear the Prop 8 case.

This is a surprise, at least to me. It was nearly certain the Court would choose to hear one of the DOMA Section 3 cases, but it wasn’t certain what they would do about Prop 8. The issue before the Court with Section 3 of DOMA is potentially narrow: whether the federal government must recognize the marriages of same-sex couples who were legally married in states that allow it. This wouldn’t have any effect on states that discriminate against same-sex couples with regard to marriage. The issue before the Court with Prop 8 is, potentially, more sweeping: whether any state in the country has the right to prevent same-sex couples from marrying.

That’s not the way the Prop 8 case came up to the Court from the Ninth Circuit. The Ninth Circuit struck down Prop 8 on narrow reasoning: that once a state grants same-sex couples the right to marry, it can’t then take that right away. The only state where those circumstances are relevant is California, so the decision got the job done on as narrow grounds as possible in order to prevent being overruled by the U.S. Supreme Court.

But the U.S. Supreme Court can rule as broadly or as narrowly as it wishes on case before it. For instance, in the Citizens United case, the parties came to the Supreme Court on a pretty narrow issue: whether “electioneering communications” — in that instance, a political documentary — could be prohibited from airing on TV within 30 days of a primary election. But the Court decided, on its own accord, to broadly overturn a century of campaign finance law.

The Court can do one of several things in the Prop 8 case. It could rule that:

(1) The U.S. Constitution guarantees that same-sex couples have the right to get married. This would be a sweeping ruling that would probably lead to renewed calls for a constitutional amendment allowing states to discriminate against same-sex couples. Such an amendment would not likely get the 2/3 congressional majority it would need in order to be passed to the states, but there could be “massive resistance” in some states (let’s say, the southern states), where government officials may simply refuse to marry same-sex couples. This is the least likely ruling.

(2) Same-sex couples have no constitutional right to get married. States are free to allow it, but they don’t have to. In other words, we’d have the status quo, and marriage equality would continue its state-by-state progression. In 2016, there would probably be a ballot initiative in California to overturn Prop 8, and it would probably pass.

(3) The opponents of Prop 8 lack standing to argue the case. Interestingly, the Court directed the parties to brief this question. After Judge Walker struck down Prop 8, the state of California refused to appeal the case to the Ninth Circuit; Prop 8’s opponents asked the Ninth Circuit if they could argue it instead. The Ninth Circuit ruled, on the advice of the California Supreme Court, that it could. But the U.S. Supreme Court could find that the Prop 8 opponents are not a party to the case, in which case the Ninth Circuit’s Prop 8 ruling would be invalidated. It’s not clear what would happen then – would Judge Walker’s broad decision remain in effect? Or would it only apply to the couples who actually argued the case?

(4) Prop 8 is unconstitutional, but only because of the circumstances specific to California. In other words, it could affirm the Ninth Circuit’s decision.

I’m not sure the Court will do this. To be honest, the Ninth Circuit’s decision was a little disingenuous. The Ninth Circuit reached the right decision — that Prop 8 is unconstitutional — but it was a bit too clever. It doesn’t really make sense that the constitutional right to marry depends on whether a couple previously had the right to marry or not. The court, citing Romer v. Evans, says that taking away a pre-existing right is evidence of animus, and that animus is not a valid reason for taking away a right. But the people who didn’t want gay couples to get married after Prop 8 are the same people who didn’t want gay couples to get married before Prop 8. Why was it animus to believe so after Prop 8 passed, but not before? It doesn’t make sense, and I suspect a majority of the U.S. Supreme Court agrees, no matter how they feel about the substantive right at issue.

Then again, the Ninth Circuit did base its ruling on Romer, which said this very thing. So it’s possible that Kennedy (who wrote Romer) along with Ginsburg, Breyer, Sotomayor and Kagan could uphold the Ninth Circuit’s ruling using Romer as precendent.

But why would it do so? Why not just refuse to hear the case and let the Ninth Circuit’s decision stand? It takes four votes for the Supreme Court to hear a case, and we have no idea which justices voted to hear this one. If it was the four conservatives, perhaps they think they can win Kennedy over. Or Kennedy himself, who, for good and for ill, doesn’t seem to know the meaning of judicial restraint, might have voted to hear the case in order to put the Court’s own stamp on things. We have no way of knowing.

All we know for sure is that same-sex couples in California have been on a roller coaster over the last four years. Their hopes have been raised and dashed repeatedly. Last week it seemed that Prop 8 might soon be in history’s dustbin; the same seemed true earlier today. Instead, these couples will have to wait for justice until at least the end of June.

And justice delayed is justice denied.

7 thoughts on “The Supreme Court and Prop 8

  1. What you see as the least likely outcome, I see as the most likely. Here’s why:

    I take it as nearly certain that marriage equality has four votes (Kagan, Sotomayor, Ginsberg, Breyer), and that Kennedy is the most likely fifth vote.

    Kennedy has generally been on the side of gay rights, but just to be sure of getting him, Walker’s ruling was very carefully written with the Supreme Court in mind, and specifically with Kennedy in mind; he relies heavily on Kennedy’s decision in Romer v. Evans. Collectively, Supreme Court justices don’t like to overturn their own precedents; individually, they especially don’t like to overturn important decisions that they wrote. So I think it’s highly likely that there are 5 votes on the pro-equality side.

    On a case this large, neither side is going to vote to hear the case unless they’re certain of victory, because a loss is potentially too devastating. The conservatives won’t take the case if they’re risking letting marriage equality become the law everywhere; the liberals won’t take the case if they’re risking a complete loss of the right to same-sex marriage. So if they’re taking the case, then someone is convinced they’re going to win, and I don’t see where the conservatives get five votes. Even if they have Roberts, and even if they think they have Kennedy right now, they know that Kennedy is, as justices go, more likely than most to change his mind after hearing the arguments. So it seems far more likely to me that it’s the liberal justices who feel confident of victory.

    (Why, you may ask, would the liberal justices be willing to take a chance on Kennedy possibly changing his mind when the conservatives would not? I think it’s because the liberals also have Roberts on their side. He has demonstrated that he is very aware of how he and “his” Court will be viewed by history, and I think he would very much prefer to be the Chief Justice who brings us a new Brown v. Board of Education rather than the Chief who brings us a new Plessy v. Ferguson.)

    If all the liberals had in mind was a return to pre-Prop 8 status, with marriage equality existing in California, then they could simply have declined to hear the case and let Walker’s ruling stand. The fact that they’re hearing the case suggests to me that they expect to accomplish something more than that. And given the facts and circumstances of the case, I can’t see a middle ground that’s bigger than restoring marriage equality to California, but smaller than declaring a Constitutional right to same-sex marriage.

    I think we’re looking at a 6-3 decision that same-sex couples have a Constitutional right to marry.

  2. “(3) The opponents of Prop 8 lack standing to argue the case. ”

    As the day has gone on, and I’ve been able to put some emotional distance between the fact that Jeff and I are directly impacted by this, more and more I’m starting to suspect they may take this route. The standing question regarding initiative proponents has been skirted by them in the past, and this may be an opportunity for them to finally settle that question, get Prop 8 off their plate, and not have to face the tougher constitutional questions just yet.

  3. Though, in my most positive-thought moments, I end up exactly where Keith is, with a 6-3 decision including Roberts in the majority. I’m just at heart too pessimistic, I think, especially about the Supreme Court, to stay there for very long.

  4. What do you think about the DOMA case that the court decided to hear? I also wonder what the impact of the votes in Washington, Maine, Maryland and Minnesota will have on Kennedy and Roberts.

  5. Keith – I don’t know, I just can’t see the Supreme Court overturning the laws of 41 states. That’s just not the way they tend to do things.

    Thom – we shall see.

    Esther – I think it’s pretty likely they’ll overturn Section 3 of DOMA. As Kenji Yoshino put it, Justice Kennedy likes states’ rights and gay rights. I don’t know about Roberts, though. There’s just no way to know.

  6. It wouldn’t QUITE be overturning the laws of 41 states; there are eight or nine states which allow same-sex couples to enter civil unions or domestic partnerships which have all the rights and responsibilities of marriage, just not the name, so all that would change in those states would be the label given to those unions.

    You’re right, though, that even 30-plus states would be a big chunk of state laws to overturn in one shot. But I am still optimistic (naive?) enough to think that what is right will mean more than what is popular to a majority of Justices.