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3 posts from February 5, 2012 - February 11, 2012

February 09, 2012

Prop 8 lawyers debating what to do next

Will the Prop 8 defenders who lost the Perry case before the Ninth Circuit panel seek en banc review or head straight to the Supreme Court? They have until February 21 to file a motion for rehearing en banc; if that date passes without such a motion, we can wait for the cert petition.  According to this LA Times report, it sounds like the decision is not yet made:

Andy Pugno, general counsel for ProtectMarriage, noted that a judge on the 9th Circuit might independently call for fellow jurists to vote on whether to review the ruling. Whether such a vote would gain majority support remained doubtful, law professors said.

A rehearing would permit the 9th Circuit to reframe the legal case and deliver a ruling that would affect marriage laws in other states, the outcome preferred by ProtectMarriage's supporters, Pugno said. Tuesday's ruling was limited to circumstances in California and would not affect other states.

A ruling by a larger 9th Circuit panel also "would raise the profile of the case and increase the attention the Supreme Court would give to it," Pugno said. But he cautioned that his group's legal team was still debating strategy. In the past, ProtectMarriage lawyers have said they wanted to get to the Supreme Court as quickly as possible.

Courage Campaign says that "signs point to" ultra-conservative Judge Diarmuid O’Scannlain as being the judge interested in independently calling for an en banc hearing.

Meanwhile, back in plaintiffs' camp, it appears from MetroWeekly that Ted Olson has totally drunk the kool-aid:

One of the lawyers fighting Proposition 8 said that [yesterday's decision] of the U.S. Court of Appeals for the Ninth Circuit in Perry v. Brown striking down the initiative makes it "somewhat less likely" that the U.S. Supreme Court would hear an appeal of the case, while his co-counsel was more ambitious, suggesting that the ruling could have a ripple effect of advancing marriage equality in Georgia and Arkansas.

On a conference call organized by the American Foundation for Equal Rights, which brought the case, attorney David Boies told reporters, "I think the grounds do make it somewhat less likely that the Supreme Court will take it."...

"With a precedent like Romer that so squarely fits," Boies asserted that the outcome in the Ninth Circuit's opinion was solid. To that end, Boies added: "The [Supreme] Court might not want to take this issue on on those facts and might want to wait for a case that raises the more general issue."...

[By contrast, Olson said,] "Our opponents are going to say, 'That didn't decide what goes on in Georgia. That didn't decide what goes on in Arkansas.' But we're talking about the fundamental right of individuals to enjoy the relationship of marriage. This decision talks in terms of how important and fundamental that is."

February 07, 2012

Ninth Circuit rules that Prop 8 has no rational basis; Supreme Court review far from certain

Today's decision from the Ninth Circuit ruling that Prop 8 is unconstitutional because it violates the Equal Protection Clause, even under a rational basis test, is terrific. Why do I love it? Let me count the ways.

Its narrow rationale gives anti-gay advocates a much smaller target to try to hit. As I had hoped for (over and over again), the court wrote this opinion so that it applies only to California. Only in California did a state supreme court rule that same-sex couples have a state constitutional right to marry, only to have that right taken away by voters. From the decision:

Whether under the Constitution same-sex couples may ever be denied the right to marry . . . is an important and highly controversial question. . . . We need not and do not answer this broader question in this case, however, 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... 

[T]he Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason...Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place...The action of changing something suggests a more deliberate [invidious] purpose than does the inaction of leaving it as it is.

This reasoning dramatically lowers the stakes in the Perry litigation, and leaves for another day the broader constitutional question of whether, regardless of a prior state court ruling, same-sex couples have a federal constitutional right to marry in every state.

The absence of a decision on the big question greatly increases the possibility that the Supreme Court will not grant cert. I can imagine, for instance, that Chief Justice Roberts might conclude that gay marriage is precisely the kind of issue best avoided unless absolutely necessary and therefore might vote no on a cert petition, leaving conservative Justices a vote short of the four needed for the Court to take a case.  Contrary to what many in the press are saying, it is quite possible - not certain, but possible - that the Supreme Court will never hear arguments in this case.

Did someone mention Romer? Virtually the only major precedent cited in Judge Reinhardt's opinion is Romer v. Evans, the 1996 opinion of the Supreme Court written by Justice Kennedy, the key swing vote on the Court. If the Supreme Court does end up considering the merits in this case, Reinhardt's opinion positions the case as a referendum on Romer, saying in a lot of different ways that Proposition 8 sure looks a lot like Amendment 2 (the Colorado provision invalidated in Romer). Even the cadence of the Perry decision sounds like Romer. Of course, Justice Kennedy could decide that this opinion takes what he wrote in that case too far, but I can't imagine a better framing for increasing the likelihood that Kennedy would be willing to affirm. [Alas, if only Justice O'Connor were still on the Court, a good outcome would be so much more likely.]

Did no one mention Lawrence? If Romer v. Evans is all over the Perry decision, the precedent notable for its absence is Lawrence v. Texas, the 2003 Supreme Court decision (also written by Justice Kennedy) holding that sodomy laws violate the individual's liberty interest in engaging in sexual conduct (private, adult, consensual, non-commercial) without interference by the state. Relying on Lawrence would have taken the Ninth Circuit back down the rocky road of determining whether that decision can be applied to invalidate restrictions that are less severe than criminal laws. LGBT rights advocates have not been terribly successful in using Lawrence as the basis for broadening the scope of the liberty interest so that it bars laws that burden (rather than criminalize) intimate relationships; this pair of judges decided not to go there. 

Time is on our side. Needless to say, the defenders of Prop 8 have not chatted with me about what they plan to do next. But if they seek and obtain en banc review, this case will remain in the Ninth Circuit for quite a while more - let's say a year. (It is already almost three years since it was filed.) Then they seek review in the Supreme Court of whatever the en banc court declares. By that time, it is not crazy to imagine that there could be four or so more states that have adopted equal marriage laws, all by majoritarian means. It's also not crazy to imagine that there might have been an alteration of who is on the Supreme Court. There are way too many variables and possibilities to try to predict an outcome. But the picture for advocates of same-sex marriage is only going to get brighter. 

February 06, 2012

Tomorrow, the merits

The U.S. Court of Appeals for the Ninth Circuit will issue its decision tomorrow in Perry v. Brown, the challenge to the constitutionality of Prop 8. Actually, it will be the decision of the panel of three judges (randomly) assigned to hear the case: Reinhardt, Hawkins and Smith. Reinhardt and Hawkins seem almost sure votes to declare Prop 8 unconstitutional, and I would be astonished if this panel does not reach that result.

The main questions going forward are - What will be the basis of the ruling? What comes next?

First, a few side issues: The judges also must rule on whether the proponents of Prop 8 have standing to defend it, given that state officials have declined to do so. With the California Supreme Court having declared its view that, under state law, the proponents should have standing, I think it's highly likely that the panel will also find standing. Another question consolidated as part of this appeal is whether trial judge Vaughn Walker should have recused himself, because he and his partner's legal status may have been affected by the outcome. Easy - the court will swat down that objection. Lastly, in an embarrassing snafu, the court clerk's office mistakenly issued an order that should have been held until tomorrow, in which the court denied the motion to intervene by a state court clerk's office.

So on to the important questions - What will the Court's reasoning be if it rules Prop 8 to be unconstitutional? There are lots of sub-issues here: Will the court rule on a Due Process/liberty ground, extending the principle that individuals have a fundamental right to marry? Alternatively or perhaps as an additional ground, will the court find the Equal Protection Clause to be decisive? If it does, will this become the first federal appellate court decision to rule that classifications based on sexual orientation should be subject to heightened scrutiny?* [Historical footnote after the jump] Will the court find that Prop 8 fails even a rational basis test? For a sense of how important the standard of review is, recall that the Justice Department letter stating that DoMA is unconstitutional is contingent on the applicability of heightened scrutiny; under a rational basis test, DoJ concedes that DoMA should be upheld.

From a strategist's point of view, even more important than the doctrinal basis for such a ruling is the question of whether the court will issue a narrow or sweeping ruling. In other words, it could adopt the arguments presented by the City and County of San Francisco, and find that Prop 8 is unconstitutional because of the particular sequence of events in California, ie that sexual orientation had been found to be a suspect classification under the state constitution before the vote. The great value of this narrow approach is that it would provide the perfect excuse for the U.S. Supreme Court to decline to review the decision. 

Whatever the court rules, on whatever basis, what will happen next? The losing party has the choice to either seek review by the Ninth Circuit as a whole (called "en banc review") or to skip that stage and file a petition for certiorari to the Supreme Court. One advantage of going the en banc route is that as soon as en banc review is granted - and it is difficult to imagine that it would not be in this case - a decision by a three-judge panel is vacated. In other words, the decision issued tomorrow could be effectively erased fairly quickly. That is because the en banc court gets to write on a clean slate; it will be hearing the appeal de novo.

The opinion tomorrow will probably include a provision that stays its effect until appellate review is complete. So no wedding bells will be chiming, and the case is still far from over. But there will be a lot of noise in the streets. That is a safe prediction.

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