hunter of justice

Bill Eskridge on Perry and the constitutional politics of marriage

[posted at Stanford Law Review online]

In Perry v. Brown, the Ninth Circuit ruled that California’s Proposition 8 violates the Equal Protection Clause.[1] Reacting to the state supreme court’s recognition of marriage equality for lesbian and gay couples, Proposition 8 was a 2008 voter initiative that altered the state constitution to “restore” the “traditional” understanding of civil marriage to exclude same-sex couples. The major theme of the Yes-on-Eight campaign was that the state should not deem lesbian and gay unions to be “marriages” because schoolchildren would then think that lesbian and gay relationships are just as good as straight “marriages.”

Is taking away a minority group’s status as marriage-worthy constitutionally problematic? Judge Stephen Reinhardt’s opinion for the Ninth Circuit panel found it so, and the court demanded that the initiative’s proponents demonstrate a public interest (apart from moral condemnation) justifying this discriminatory demotion in status. The proponents’ primary justification was that discrimination against lesbian and gay couples helps the state encourage “responsible [i.e., marital] procreation” by straight couples. Judge Reinhardt could not understand how taking away marriage from lesbian and gay couples can reasonably be understood to encourage straight couples to procreate within a marital union.

In the blogosphere, Judge Reinhardt’s Perry opinion has come under heavier fire from commentators favoring marriage equality than from those opposed to equality. Some gay-friendly commentators have lamented that the Ninth Circuit did not announce a general right of lesbian and gay couples to marry all over the country and have criticized the court’s narrow reasoning as “dishonest,”[2] analytically “wobbly,”[3] and “disingenuous.”[4] In my view, the court got it right, as a matter of law and as a matter of constitutional politics.

Start with the role of federal courts of appeals in our rule of law system: their role is a limited one, a point these pro-gay commentators have neglected. Such courts (1) are supposed to address the particular factual context presented by the parties, (2) must follow the binding precedent of their own circuit and of the Supreme Court, and (3) ought usually to choose narrow rather than broad grounds for decision. Judge Reinhardt’s Perry opinion is exemplary along all three dimensions.

Proposition 8 intended that gay and lesbian couples be carved out of civil marriage and relegated to a separate institution, domestic partnerships. The court properly viewed this official status segregation with suspicion—a suspicion that was confirmed by the proponents’ open denigration of lesbian and gay marriages and their inability to tie taking away marriage rights to a genuine public interest. The original meaning of the Equal Protection Clause was that the Constitution does not tolerate class legislation—namely, laws that separate one class of citizens from the rest and bestow upon its members a less esteemed legal regime and, with it, an inferior status.[5] This is exactly what Proposition 8 did. Hence, Judge Reinhardt was strictly enforcing the original meaning of the Equal Protection Clause, as applied to the facts before him.

Should Judge Reinhardt have gone further, to rule that lesbian and gay couples in all states enjoy a “fundamental” right to marry, resulting in strict scrutiny that would be fatal to the exclusion of such couples in the laws of the more than forty states now denying marriage equality? For two decades, I have maintained that the Constitution does assure lesbian and gay couples such a fundamental right.[6] But I am not a court of intermediate appeal. As such a court, the Ninth Circuit panel was right, as a matter of standard legal practice, not to engage this broader argument.

First, Judge Reinhardt’s opinion focused on the particular deprivation imposed by Proposition 8, which was distinctive in several respects: it took away a right that state law had deemed “fundamental,” and it did so in the context of an initiative campaign that was exclusively focused on denying lesbian and gay persons the special status associated with marriage in our society. The typical role of a court is to figure out how legal authority should be applied to particular facts. Unlike a legislature, which usually speaks in broader, generally applicable rules, a court applies general rules to particular facts.

Second, courts are supposed to prefer narrow rather than broad grounds for their rulings. Indeed, this is the genius of the common law. Rather than making broad pronouncements, courts in our legal system typically make narrow pronouncements grounded in the facts. At some point, a broad principle may emerge for an issue that recurs. The common law pragmatically believes that general principles come slowly and incrementally, through a series of modest rulings, fortified by social and political feedback, and then expanded if society moves toward the larger precept. Constitutional law operates in the same common law manner, and the issue of marriage equality is one on which the country as a whole is not at rest.[7]

Third, precedent supports the narrower reasoning of Judge Reinhardt as opposed to the more sweeping reasoning advocated by some commentators. The Supreme Court has said very little about how the Equal Protection Clause applies to gay people. In Romer v. Evans, the Court struck down a Colorado initiative that took away some antidiscrimination rights enjoyed by gay persons.[8] The Court emphasized that the initiative took away from a disadvantaged minority guarantees of equal treatment that most Americans take for granted, and it did so without a clear justification based on the public interest. Proposition 8 did the same thing, and Judge Reinhardt was right to follow binding Supreme Court precedent.

To be sure, Romer was different from Perry in one respect: the Colorado initiative took away a variety of specific legal rights and benefits, while the California initiative took away a unique status (i.e., marriage). These are different kinds of deprivations, but they are qualitatively similar in their affront to the Equal Protection Clause. Consider a history-based thought experiment.

In Loving v. Virginia, the Supreme Court invalidated state bars to interracial marriages.[9] Assume that the opponents of marriage equality in one state responded with a law taking away from interracial spouses a dozen legal rights linked with civil marriage. And assume that opponents in another state responded with a law taking away from interracial spouses the status of being married but gave them all the legal benefits and rights under a separate institution, call it “domestic partnership.” Adhering to Loving, lower federal courts would have to strike down both laws, and for basically the same reason: both laws would violate the equality mandate by creating a subordinate class of citizens. In some respects, the latter law (like Proposition 8) is a more open status denigration, but both laws would be constitutionally problematic.

Thus, Judge Reinhardt was required by Romer to strike down California’s Proposition 8. There is no Supreme Court precedent that is as close to this case as Romer. If he had ruled that lesbian and gay couples have a fundamental right to marry or that sexual orientation classifications are inherently suspect, Judge Reinhardt could have reasoned from Supreme Court precedent, but there would have been no precedent as much on point as Romer.[10]

As a matter of constitutional law, Judge Reinhardt’s opinion was more rigorously reasoned than either the trial court’s opinion that he affirmed or the views of commentators who would have liked a more sweeping ruling. The fans of a broader ruling, of course, are more inspired by constitutional politics than by constitutional law—but they are wrong about the politics as well.

As the proverbial “least dangerous branch,” the federal judiciary (headed by the Supreme Court) is unable, and usually unwilling, to strongly challenge entrenched inequalities in this country. Judges may be willing to nudge the country in the right direction, but rarely do they give a hard shove until the balance of antiminority prejudice and prominority sympathy has shifted toward the latter.

Recall the interracial marriage bars. The Supreme Court could have invalidated them right after Brown v. Board of Education.[11] The Court decided not to do so,[12] reluctantly but wisely. The justices understood that democracy itself is threatened if forced to prematurely decide an issue that intensely but evenly divides the polity.[13] In 1955, three-fifths of the states barred interracial marriages, and feelings ran high on the issue. By 1967, only a third discriminated in this way, and many opponents felt less strongly.[14] Only then did the Court insist on marriage equality for interracial couples. Southerners bitterly criticized the Court, but the racist cause of open apartheid was lost by 1967.

The crusade against marriage equality for gays is still robust in the United States today. Only seven states (perhaps eight soon, pending the passage of legislation in Maryland) and the District of Columbia now recognize same-sex marriage. More than forty states specifically forbid it, most as a matter of state constitutional law. Americans are evenly divided on the issue, and partisans on both sides have heated feelings. Under these circumstances, the federal judicial branch ought not to issue broad rulings that pretend to decide the issue once and for all. This was a lesson of Roe v. Wade, a prematurely sweeping decision.

For this reason, the Supreme Court would be wise to deny review for the Ninth Circuit’s decision or to go along with Judge Reinhardt’s narrow ruling. California is ready for marriage equality in ways most of the rest of the country is not: there are thousands of openly lesbian and gay couples, many rearing children, who have persuaded their neighbors and coworkers that marriage equality would be good for their communities. Opposition remains, but its intensity has diminished.

Other states are not ready, because there are fewer openly lesbian or gay families and because opposition is more widespread and more intense. It is likely that the federal courts of appeals in the South would be reluctant to reach exactly the same result as the Ninth Circuit in Perry. For now, the Supreme Court should deny review of those decisions as well. This would allow individual states to deliberate further, consistent with the common law tradition and with the Court’s view of the states as “laboratories of experimentation.”

Marriage equality is an idea whose time has come for California, as well as for New York, whose legislature recognized marriage equality last year.[15] But has its time come everywhere in the country? I fear not. The nation’s constitutional culture is much more accepting of lesbian and gay couples today than at the turn of the millennium, but much of the country is still hostile to gay people generally and marriage equality in particular.

Does that mean the Ninth Circuit and the Supreme Court should cower behind a constitutional heckler’s veto? Of course not. But when the hecklers are the bulk of the audience, the constitutional speaker needs to tread more carefully. Courts can help put an issue on the public law agenda, and they can channel discourse into productive directions. They can also help create conditions for falsification of stereotypes and prejudice-driven arguments, such as the canard that gay marriage will undermine “traditional” marriage. But courts cannot create a national consensus on as issue about which “We the People” are not at rest. And nationally, the people are not at rest.

In the United States, as a whole, marriage equality is an idea whose time is coming. And Judge Reinhardt’s decision in Perry v. Brown advances the ball just a little, and not too much.

Prop 8 backers to seek en banc review

From MetroWeekly:

Charles Cooper, the lead attorney for the proponents of Proposition 8, tells Metro Weekly that the proponents of the California marriage amendment will be asking the full U.S. Court of Appeals for the Ninth Circuit to review the three-judge panel decision issued on Feb. 7 holding that Proposition 8 is unconstitutional.

Although Cooper, of Cooper and Kirk PLLC, told Metro Weekly the filing has not yet been made, the filing is expected later today as today is the deadline for the filing to seek en banc review. The move almost guarantees that the U.S. Supreme Court will not consider the case before this November's presidential election.

Usually, en banc review involves all of the active judges on the court, but the Ninth Circuit -- due to the more than 20 active judges on the circuit -- has adopted a unique "limited en banc" procedure in which all the active Ninth Circuit judges vote whether en banc consideration will be given but only 11 judges hear the en banc consideration. That will be the request made by today's filing by the proponents.

If a majority of the court's judges support en banc consideration, then the chief judge of the circuit, Judge Alex Kozinski, and 10 randomly selected appellate judges from the circuit will hear the en banc appeal, which can involve briefing and oral arguments.

After that decision is reached, theoretically, a party dissatisfied with an en banc ruling of the Ninth Circuit can ask for the full Ninth Circuit to review the en banc panel's decision, but the court has not agreed to do so since adopting the "limited en banc" procedure.

After en banc consideration, the unsuccessful party could then petition the U.S. Supreme Court to hear the case. At that point, the parties submit written arguments explaining to the court why the justices should or should not hear the case. Then, if four of the nine justices agree to hear the case, another round of briefing occurs, with the parties and outside organizations and individuals arguing the merits of the case to the justices. Oral arguments are then set and held at the Supreme Court, and some time later a decision is handed down.

Matt Coles on the Perry decision: Can it be limited to California?

Matt Coles, former Director of the ACLU LGBT Rights Project and now Deputy National Legal Director of the ACLU, and I will be trading comments this week on the Ninth Circuit panel decision in Perry v. Brown [2012 WL 372713]. 

Following are Matt's comments on the decision. I will respond in a future post.

 

Are taking away and denying different under equal protection? 

 Judge Stephen Reinhardt’s opinion for the Ninth Circuit Court of Appeals in the Prop. 8 case purports, in effect, to limit the decision to California.  The only question the Court need answer, Reinhardt writes, is whether the “…elimination of the rights of same-sex couples to marry…” was constitutional (slip op. at p. 2, emphasis in the original).  Since California is the only state that gave same-sex couples the right to marry and then took it back, the Perry case applies only to California as long as there is a constitutionally significant difference between withdrawing a right, as California did, and withholding it in the first place. 

The context of a case can change the legal rule that applies.  If I am arrested for speaking on public property, it matters whether I am standing in a park or at the entrance to the county jail.  Speech in parks gets greater protection.

Judge Reinhardt appears to say that the difference between withdrawing and withholding does matter for constitutional purposes because withdrawing a right “…suggests a more deliberate purpose than does the inaction of leaving it as it is.”  But amending a constitution to preemptively deny marriage to same-sex couples is more deliberate than inaction as well.  More to this point, there isn’t much in equal protection law to suggest that degrees of deliberateness matter.   

The Opinion seems to be on slightly stronger ground when it then invokes Romer v. Evans as authority for the proposition that withdrawing a right can violate the constitution even when denying it in the first place would not have.  Colorado’s Amendment 2, the subject of the Romer case, took away the power of the Colorado legislature and local legislative bodies to protect gay men, lesbians and bisexuals from discrimination.  There was no argument in Romer that Colorado was required to pass laws forbidding discrimination against LGB people. 

Still, Romer won’t hold the weight the 9^th Circuit wants to lay on it.  Colorado’s Amendment 2 did repeal three municipal ordinances.  But it also forbade the state legislature, which had not passed any laws protecting LGB people, from ever enacting any.  The Court draws no distinction between the withdrawal of actual rights in the three cities and the preemptive withholding at the State House.  In describing the effect of Amendment 2, it treats them as of a piece.  The problem with Amendment 2 was not that it repealed the ordinances, but that it imposed a selective constitutional bar to protective legislation.

At one point the 9^th Circuit opinion suggests that the somewhat confusing “literal violation” section of Romer establishes a rule of equal protection that withdrawing rights creates “an inference of animus” (slip op at 16), which requires “careful consideration” of possible legitimate interests which might rebut the inference (at 17).   Over the years the Supreme Court has resisted the suggestion that from time to time it employs a form of “heightened rational basis” review.  (See Heller).  Nevertheless, if there is rule calling for more careful review once an “inference of animus” has been raised, the device that raises the inference under Romer is a selective constitutional bar to legislation, not a withdrawal of existing rights.  An inference like that would be raised not just by Proposition 8 but by all 29 state constitutional amendments which forbid state legislatures from permitting same-sex couples to marry. 

Still, there is another way that the context of a case may distinguish it legally from another otherwise similar case.  Some aspect of the context may make the constitutional analysis turn out differently.  That’s the other reading of Romer; that the selective bar on constitutional protection caused Amendment 2 to flunk the rational basis test when the failure to pass a protective law would not have.  Whether the withdrawal of rights that was Prop. 8 does that as well is the subject of part 2.  

Part 2: What makes California special  

Even if the presence of a particular fact does not call up a different legal rule than its absence would, the fact can change the outcome of a case if it changes the way the constitutional analysis comes out.  So for example in the Cleburne case, the city argued that requiring homes for the mentally disabled to go through a special permit process was rational because the area was in a 500 year flood plain, which raised evacuation concerns.  Without more, that might have seemed rational.  But the local zoning code allowed hospitals and other group uses without the special permit process.  The Court found it difficult to see how group homes and hospitals could be thought different in terms of evacuation. 

The question in the Prop. 8 case then is whether the fact the 9^th Circuit focuses on—that Prop. 8 withdrew rights LGB people had—changes the way equal protection analysis comes—or ought to come—out.

The 9^th Circuit says the sponsors of Prop. 8 and allied Friends of the Court offered four rationales for Prop. 8, and then gives us five: 1) increasing the likelihood that children will be raised by two biological parents; 2) channeling “irresponsible procreation;” 3) proceeding with caution before making major changes to marriage; 4) protecting religious freedom; and 5) preventing children from being taught that same-sex relationships are as good as heterosexual marriages. 

The Circuit’s explanation of why the last three rationales are not rational does not in any sense turn of the fact that Prop. 8 withdrew rights from LGB people. 

The Court says that a ban on marriage for same-sex couples cannot be thought of as “proceeding cautiously.”  A moratorium, which allowed the legislature to decide after study (not far from what the Hawaii amendment did), it suggests, would be moving cautiously.  A ban is an end.  That’s true enough, but it is also true of the other 28 state constitutional bans passed by voters. 

The Circuit tells us Prop. 8 can’t rationally be thought to have been aimed at making sure that religious institutions wouldn’t be required to provide services to same-sex couples since Prop. 8 didn’t change the anti-discrimination laws.  That’s especially true since “domestic partnership” in California is a marital status protected from discrimination just as marriage is.  If the crucial fact turns out to be that same-sex couples retain the same protection against discrimination, it’s a distinction California shares with the seven or eight (depending on what you do with Nevada) states that also have full civil union.  If it’s the fact that the Proposition alone didn’t change the civil rights laws, it’s a distinction shared with the other 28 amendment states.

The Circuit has a similar explanation for why the teaching rationale won’t fly: Prop. 8 made no changes to the laws on what schools can or can’t teach.  Whether that is true of some or all of the other 28 states turns on their education laws (some may require that marriage be taught as superior, while California does not).  But even if California is alone here, it is because of its education laws, not the withdrawal of marriage.  So we don’t know if California stands alone.  (In this section, the Court hints at what might be a far better reason to reject this argument: that it comes down to nothing more than saying we will make LGB people inferior so that our children can be taught they are so.  That seems a clear violation of the bedrock rule that you can’t make people unequal just because you want to treat them differently.  But that’s another piece)

Then there is the first rationale—getting children raised by two biological—read opposite sex heterosexual—parents.  According to the Court, Prop. 8 did not increase the likelihood that children will be raised by pairs of biological parents because it did not change California’s laws on parenting.  Both before and after Prop. 8, committed same-sex and committed opposite sex couples had precisely the same rights and obligations to become parents and raise children.  Again, all quite true, but true as well of all nine full civil union states.

Which brings us to the favorite of marriage opponents, “irresponsible procreation.”  A lot of people make fun of this, but they shouldn’t.  It isn’t crazy to think that one purpose of marriage is to entice and pressure heterosexuals to enter into a binding union so that they’ll stay together and raise their offspring together.  It is one of the functions of marriage.  Judge Reinhardt is quite right though that while pressuring heterosexuals to commit might explain why you would only extend marriage to them, it is no explanation for taking marriage away from same-sex couples.  It is no explanation, that is, unless “channeling procreation” is the only purpose of marriage, something even the most rabid opponents of marriage for same-sex couples are unwilling to say (right now).

So while the fact that Prop. 8 took rights away from same-sex couples doesn’t change the legal rule used to analyze it, it does change the analysis.  But not completely.  And how much it is truly limited and how much it is not may have a great deal to do with what happens next.  That’s the subject of part 3. 

Part 3: Adding it up.

The claim that marriage is not extended to same-sex couples because one of its purposes is to pressure heterosexuals to have children inside a committed union may or may not make sense elsewhere.  It doesn’t make sense in California where the issue is not who ought to be included in marriage, but why it ought to be taken away from same-sex couples. 

 That leaves the “irresponsible procreation” argument alive in the other states of the 9^th Circuit and untouched by 9^th’s reasoning elsewhere.  That’s important, because “irresponsible procreation” has become the leading successful argument for not extending marriage to same-sex couples (see the Conaway case in Maryland, the Andersen case in Washington and the worst reasoned of the whole lot, the Hernandez case in New York). 

Denying the protections of marriage to the children of same-sex couples might discourage some of those couples from having children where those protections aren’t otherwise available; that is in a state that doesn’t a civil union or domestic partnership.  So that argument is alive in Arizona, Alaska, Idaho and Montana.  But it is dead in Hawaii, Nevada, Oregon and Washington.  The existence of identical treatment for both kinds of couples make “two biological parents” an untenable argument for refusing to extend as well as to exclude same-sex couples from marriage in civil union states.  That’s probably true of the “religious freedom” and “teaching our children” rationales as well. 

 The “cautious approach to change” rationale is pretty much a dead letter in the 9^th except in Hawaii, which fits the bill because it’s amendment allows the legislature to extend marriage to same-sex couples (all the 9^th Circuit states passed anti-marriage state constitutional amendments). 

So it is true that in one very important respect—the viability of what has become the leading argument for limiting marriage to opposite sex couples—California stands alone.  Moreover, and this should not get lost in the shouting if the case does get to the Supreme Court, the Court’s reasoning on the other significant rationale—encouraging opposite sex parenting--apply to California and the other civil union states, but not beyond.  So except for one patently silly claim—that forbidding something in your fundamental charter is a way of giving it measured consideration—even on the secondary arguments, this is no more than a case about granting legal equality but using the law to deny social equality.   Not that that isn’t enough; it just isn’t everything. 

The week ahead: February 20, 2012

February 23-25 - A conference on Democracy and the Workplace at UNLV Law School, exploring the dynamics of employee participation in workplace governance issues.

February 24 - A conference on Reproductive Justice: Examining Choice and Autonomy in the New Milennium will include discussion of access to reproductive technologies by lesbians; at Thomas Jefferson School of Law in San Diego.

February 24-25 - The second LGBTQ Civil Rights Conference at Chicago-Kent Law School.

The week ahead: February 13, 2012

Thursday, February 16 - London - Program on "Family Migration, Asylum and Same-Sex Couples in the U.S. and U.K"; details here.

Friday-Saturday, February 17 -18 - "Privatization of Social Responsibility," a conference co-sponsored by the Feminist Theory Project at Emory Law School.

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."

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. 

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.

No release of Prop 8 trial videotapes

The Ninth Circuit ruled today that District Judge James Ware (who replaced retired Judge Vaughn Walker) abused his discretion by ordering the public release of videotapes made of the trial in which the constitutionality of Prop 8 was successfully challenged.

The unanimous opinion, written by Judge Stephen Reinhardt, was limited to the specific facts of this case, and ventured no position on the broader questions of public access to judicial proceedings by electronic means. The court stated that "The trial judge [Walker] on several occasions unequivocally promised that the recording of the trial would be used only in chambers and not publicly broadcast...[T]he integrity of the judicial process is a compelling interest that in these circumstances would be undermined by the nullification of the trial judge's express assurances..."

New HUD regulation bars housing discrimination against lgbt persons and families

The Department of Housing and Urban Development has issued its final rule prohibiting discrimination based on sexual orientation or gender identity in HUD-assisted or -financed housing. The rule also bans inquiries as to these characteristics, and specifically defines "family" to include lgbt families. The regulation will be published in the Federal Register next week, and go into effect 30 days after the date of publication. 

HUD's summary of its provisions:

• Requires owners and operators of HUD-assisted housing, or housing whose financing is insured by HUD, to make housing available without regard to the sexual orientation or gender identity of an applicant for, or occupant of, the dwelling, whether renter- or owner-occupied.  HUD will institute this policy in its rental assistance and homeownership programs, which include the Federal Housing Administration (FHA) mortgage insurance programs, community development programs, and public and assisted housing programs. 
• Prohibits lenders from using sexual orientation or gender identity as a basis to determine a borrower’s eligibility for FHA-insured mortgage financing.  FHA’s current regulations provide that a mortgage lender’s determination of the adequacy of a borrower’s income “shall be made in a uniform manner without regard to” specified prohibited grounds.  The rule will add actual or perceived sexual orientation and gender identity to the prohibited grounds to ensure FHA-approved lenders do not deny or otherwise alter the terms of mortgages on the basis of irrelevant criteria. 
• Clarifies that all otherwise eligible families, regardless of marital status, sexual orientation, or gender identity, will have the opportunity to participate in HUD programs. In the majority of HUD’s rental and homeownership programs the term “family” already has a broad scope, and includes a single person and families with or without children.  HUD’s rule clarifies that otherwise eligible families may not be excluded because one or more members of the family may be an LGBT individual, have an LGBT relationship, or be perceived to be such an individual or in such relationship. 
• Prohibits owners and operators of HUD-assisted housing or housing insured by HUD from asking about an applicant or occupant’s sexual orientation and gender identity for the purpose of determining eligibility or otherwise making housing available. In response to comments on the proposed rule, HUD has clarified this final rule to state that this provision does not prohibit voluntary and anonymous reporting of sexual orientation or gender identity pursuant to state, local, or federal data collection requirements. 

 

The un-cola decision in Perry coming tomorrow

The Ninth Circuit posted an announcement today that it will issue its decision tomorrow on whether the videotapes of the trial in the Perry case must be released to the public. The District Court judge ruled that they should be, but the Court of Appeals then stayed any release pending its decision (after a separate oral argument just on the stay). If this court affirms the original ruling of the trial court, it may or may not also suspend actual release until the Prop 8 proponents have time to seek review either en banc or before the Supreme Court. Meanwhile, the clerk of the Northern District of California, where the case originated, announced that even without a built-in stay, that court won't be able to process release of the tapes until at least next week. 

Whatever. I can't get very excited, frankly, about whether these tapes are released. Yes, they will provide the material for lots of terrific quickies on YouTube, and these might have educational value, but I'm dubious about how many people's minds will be changed by seeing them. The legal point - public access to judicial proceedings - is important, but muddied by representations made during trial that there would be no public release of these recordings. And I don't think that the court's ruling on this point will predict anything about how the ruling on the merits will come out.

Oh yeah...what about that ruling on the merits? I've been asked a couple of times why I think it's taking so long.  Actually, it hasn't taken any longer than I expected. If the case had not been set for expedited consideration, this phase might well drag on for months.  But it is on an expedited track, and for that reason, my guess is that it won't be much longer. If I had to bet - which thankfully I don't - I would wager that there will be a ruling this month.  Valentine's Day?

The week ahead: January 30, 2012

Monday, January 30 - Trial to begin anew in Orozco v. Attorney General of Belize, the challenge to that country's sodomy law.

 

 

The week ahead: January 23, 2012

Wednesday, January 25 - Hearing on motion for summary judgment in Doe v. Jindal, in which the Center for Constitutional Rights is challenging the selective enforcement of Louisiana's sodomy law (yes, it's still on the books) in federal district court.

Also January 25 - Opening brief due in Ninth Circuit in Doe v. Reed, the appeal from a decision denying anonymity to individuals who signed petitioners to put a recall question on domestic partnerships on the ballot in the state of Washington. The case should be decided just in time for the legislature to adopt a marriage equality bill.

January 27-28 - Symposium at UCLA Law School on "Overpoliced and Underprotected: Women, Race and Criminalizaton" analyzing the interlocking nature of institutions that reinforce the subordinating nature of the criminal justice system; one panel focuses on "Punishing Sexuality and Reproduction."

The week ahead: January 16, 2012

Monday, January 16 - The newly-formed Indiana Journal of Law and Social Equality is currently seeking submissions for its inaugural issue and symposium, “Whither Social Equality?” The issue and the symposium, to be held on March 30, 2012, in Bloomington, Indiana, will explore the current state of social equality thought from a variety of perspectives and address a variety of different forms of (in)equality (race, class, gender, sexual orientation, intersectionality, and familial status). Submit papers, proposals, or abstracts to ijlse@indiana.edu by January 16, 2012.  

Also January 16 - Deadline for submission of law student papers on topics of sexual orientation and gender identity to be considered for the Dukeminier awards sponsored by the Williams Institute.

Wednesday, January 18 - CLE program in New York on LGBT Law 2011 Year in Review; speakers will include Art Leonard, Richard Socarides and Susan Sommer. More details here.

Supreme Court upholds ministerial exception to anti-discrimination laws

In a unanimous but cabined decision, the Supreme Court today in Hosanna Tabor Lutheran Church and School v. EEOC upheld what is known as the "ministerial exception" to laws against employment discrimination. The case involved a teacher in a religious school, the bulk of whose time was spent in secular instruction. The Court identified several factors for determining whether an employee qualified as a "minister," but eschewed any "rigid test." Nonetheless, it reversed a Court of Appeals decision from the Sixth Circuit which had found that the individual did not qualify for the exception.

From SCOTUSblog:

Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state and local laws against virtually all forms of discrimination on the job.  The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down.  As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case.  And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.

The main opinion written by Chief Justice John G. Roberts, ... dismissed as an “extreme position” the plea of EEOC to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.”  While the opinion said the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” the opinion went on to describe some key factors that courts are to take into account in judging whether a given denomination has proved its claim to the exception.

In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference.   The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.

...The Roberts opinion, with the support of eight members of the Court overall, said in a final footnote that is likely to take on added significance that the “ministerial exception” was not “a jurisdictional bar” to all such lawsuits claiming workplace bias.  Rather, the Chief Justice explained, it is “a defense on the merits.”  Thus, such lawsuits can be filed, and the worker who is suing will make a claim that he or she is the victim of discrimination, and then the denomination gets to answer that the case cannot go further because it considers the employee to be a “minister.”

The footnote concluded: “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.”...