Sunday, July 14, 2013

Gay Marriage Decisions--Recap and Clarification (Part 2: Prop 8)

In the last post, we recapped the DOMA decision. Now let's take a quick look at what the Supreme Court did with California's Proposition 8. Hopefully this will help clarify what the Court actually decided, as well as the actual consequences of that decision. (And once again, for anyone who would prefer to watch or listen to interviews instead--or in addition--see the links below.)
The Prop 8 case (Hollingsworth v. Perry)
Let's start with this:
The Court in this appeal decided nothing whatsoever about the merits of the same-sex marriage controversy.
But there were consequences.

The decision itself only involved the technical issue of "standing." For that reason, let's just give the briefest outline of the decision--actually, a nutshell of a nutshell. (Another nutshell2 ?). Then we'll outline, in a bit more detail, the underlying background of the case to which there's somewhat more substance and significance.

Nutshell of a nutshell (Nutshell2)
In his opinion for the majority (Roberts, Scalia, Ginsburg, Breyer, and Kagan), Chief Justice Roberts said that the proponents of Prop 8--who brought the appeal to the Supreme Court--had no "standing" to do so; they had nothing personal at stake in the outcome.
In his opinion for the dissenters (Kennedy, Thomas, Alito, and Sotomayor), Justice Kennedy argued that the proponents of Prop 8 did have a special relationship to it; they were the ones who sponsored that voter initiative in the first place.
Bottom line: because the proponents had no right to appeal, the original decision of the federal district (trial) judge--that Prop 8 is unconstitutional and cannot be enforced--remains in effect, at least unless or until a higher court rules otherwise.

Now, a few more details.
The background and facts underlying the Prop 8 case:
[This is the more interesting part of the case.]

Proposition 8 is a provision of California's constitution. It was added as an initiative passed by the voters of that state in 2008. It was a response to a decision of the California Supreme Court, earlier that year, that same-sex couples had the right to marry.

Prop 8 overturned that decision. It specifically made marriage between a man and a woman the only valid marriage in California.

Two same sex-couples (Perry, et al.) who wanted to marry challenged Prop 8 in federal court. The federal district court (trial) judge who heard the challenge ruled that Prop 8 violates the federal constitution. The federal appeals court (the 9th Circuit Court of Appeals which covers California) affirmed, also holding that Prop 8 is unconstitutional.

There was a wrinkle, however, throughout the litigation. The state of California--i.e., the governor, the attorney general, and other government officials--refused to defend Prop 8. They themselves believe it's unconstitutional.

So, the proponents of Prop 8 (Hollingsworth, et al.)--again, the ones who had officially sponsored the voter initiative in California--asked the district judge if they could defend the law. He granted them permission to "intervene" and, during the 12 day trial, the proponents did in fact present the arguments in support of Prop 8.

When the trial ended, the judge ruled in favor of the same-sex couples. He held that Prop 8 is an unconstitutional violation of due process (i.e., no legitimate reason for it) and equal protection (i.e., it illegally discriminates). He also ordered that Prop 8 not be enforced.

The proponents of Prop 8 then sought to appeal to the 9th Circuit federal appeals court. That court asked the California Supreme Court if the proponents had "standing" under California law to defend Prop 8. When California's highest court said yes, the federal appeals court proceeded with the proponents' appeal.

That court then affirmed the decision of the federal trial judge, also siding with the same-sex couples. It held that Prop 8 is unconstitutional because there was no legitimate reason for it. More specifically, that there was no non-discriminatory reason to take away the right to marry from same-sex couples in California, after the California Supreme Court ruled that they were entitled to it.

The proponents then sought to appeal to the Supreme Court. In lawspeak, the proponents of Prop 8 petitioned the Supreme Court for a writ of certiorari--i.e., they asked the Supreme Court to review the decision of the court below (the 9th Circuit federal appeals court). The Supreme Court said yes--i.e., it granted the proponents' certiorari petition.

Hence, at the Supreme Court the two sides were:
1) the proponents of Prop 8 (Hollingsworth, et al) arguing that the Court should overturn the decision of the federal appeals court and uphold Prop 8; and
2) the same-sex couples (Perry, et al), who won in both courts below.

[By the way, as many of you no doubt know, the same-sex couples were represented by Theodore Olson and David Boies, the lawyers who had opposed each other in Bush v. Gore, respectively representing George Bush and Al Gore.]

In any event, it was clear from the outset that there was a question about standing. About the proponents having a right to be a party in the case brought by the same-sex couples. And most specifically, about the proponents right to appeal the decision of the federal district judge, and then appeal the decision of the federal appeals court.

The decision on standing could have gone either way. Yes, a close question.

On the one hand, the proponents surely do not suffer anything personally or tangibly if same-sex couples are permitted to marry--in California or elsewhere. [And as I've noted before, despite what's often heard on talk radio and by some right-wing commentators, nobody at the Supreme Court was arguing any nonsense that same-sex marriage would cause them injury.] On the other, the proponents of Prop 8 (like the representatives of Congress in the DOMA case) did have a substantial interest in the survival of the law which they played a major role in passing.

The 5-4 vote certainly is some indication that neither side was absolutely right or wrong. At the very least, there were some good arguments on both sides of the issue.

Nevertheless, the majority's technical ruling that the proponents had no standing has serious substantive consequences. Yes, the Supreme Court rendered no decision on the constitutionality of Prop 8, or more broadly, on the merits of the same-sex marriage question. And yes, the Court vacated the decision of the federal appeals court. So yes, that court's ruling that Prop 8 is unconstitutional is gone.

BUT, consider the reason for that. The reason is that the proponents had no right to appeal the district judge's ruling. And no right to appeal the appeals court's ruling.

So the district judge's ruling remains unappealed and undisturbed. It remains the ruling of record. It remains the law on Prop 8.

And as noted previously, that district judge's ruling will remain the law unless or until someone with standing successfully challenges it in some other case. Or the Supreme Court sets a contrary precedent by upholding some other law that prohibits same-sex marriage.

But for now, the consequence of the Supreme Court's decision in the Prop 8 case--intended or not--is that Prop 8 is dead. The district judge's ruling stands. Same-sex marriage is the law of California.

Links to interviews:
The Capitol Pressroom with Susan Arbetter 07/4/2013 (Radio)
W/ colleague Alicia Ouellette. On DOMA, Prop 8, Voting Rights, and Affirmative Action, as well as GPS decision of NY Court of Appeals

Fred Dicker: Live from the State Capitol! 7/1/2013 (Radio)
DOMA, Proposition 8, Voting Rights Act, and misc.
[] at 29:20.

Capital Tonight with Liz Benjamin 06/26/2013 (TV)
Bonventre Talks SCOTUS’ Busy Week
DOMA, Proposition 8, Voting Rights Act, and Affirmative Action.