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Proposition 8 and Federal Litigation

The independent state actions regarding same-sex marriage and the federal controversy over DOMA have given rise to a great deal of litigation over the legitimacy of same-sex marriage. The most prominent of these is the case challenging the California same-sex marriage ban, Proposition 8. Originally adopted in November 2008, the ballot initiative amended the California Constitution to restrict the state's recognition of marriage as between a man and a woman. The passage of Proposition 8 was in response to the California Supreme Court's ruling in May 2008 that a statutory state ban on same-sex marriage was unconstitutional under the state constitution.

The electoral success of Proposition 8 was met with heated opposition from gay rights advocates, and the California Supreme Court agreed to hear the first round of challenges to the law just 15 days after the election. These state challenges claimed that Proposition 8 was improperly enacted, and received strong support from California Attorney General Jerry Brown. However, the California Supreme Court ultimately rejected these challenges in May 2009.

Following the California Supreme Court's decision, former US solicitor general Ted Olson and prominent litigator David Boies, who had been opponents in Bush v. Gore, filed a challenge to Proposition 8 in the US District Court for the Northern District of California in May 2009. Their complaint alleged that denying same-sex couples the right to marry violates both the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

The US District Court for the Northern District of California refused to dismiss the new federal challenge in October 2009. However, this new challenge to Proposition 8 engendered attempted legal interventions from both opponents and proponents of the law. Judge Vaughn Walker initially denied requests to intervene from the ACLU, Lambda Legal, the National Council of La Raza and the Campaign for California Families. The US Court of Appeals for the Ninth Circuit subsequently upheld Walker's order in November 2009. The Ninth Circuit also halted attempts by same-sex marriage supporters to gain access to internal campaign communications between supporters of Proposition 8 in December 2009.

The federal trial on the constitutionality of Proposition 8 began on January 11, 2010 in Perry v. Schwarzenegger and closing arguments were heard on June 16, 2010. Judge Walker ultimately held that the same-sex marriage ban violated both the due process and equal protection and was, therefore, unconstitutional:

Many of the purported interests identified by proponents are nothing more than a fear or unarticulated dislike of same-sex couples. Those interests that are legitimate are unrelated to the classification drawn by Proposition 8. The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal. Proposition 8 violates the Equal Protection Clause because it does not treat them equally.
Immediately following the decision, California Governor Arnold Schwarzenegger filed motions in the US District Court for the Northern District of California seeking the immediate resumption of same-sex marriages in the state. However, the US Court of Appeals for the Ninth Circuit issued an emergency stay on the ruling in August 2010. Supporters of Proposition 8 responded to Walker's ruling by seeking legal standing to appeal the decision in September 2010. Although the Ninth Circuit heard oral arguments on the appeal in December 2010, it eventually sought guidance from the California Supreme Court on the issue of standing in January 2011.


Part 1: Standing


Part 2: Merits

At the same time that the standing issue was being considered by the California Supreme Court, the sponsors of Proposition 8 were attempting to vacate the ruling from the US District Court for the Northern District of California by claiming that Judge Vaughn Walker should have recused himself from the case. Their motion alleged that Walker was biased in his ruling because he was in a long-term same-sex relationship at the time of his decision. However, Chief Judge James Ware for the US District Court for the Northern District of California refused to vacate the order, and denounced the use of sex, sexuality or race as proper grounds for recusal.

In March 2011, California Attorney General Kamala Harris asked the US Court of Appeals for the Ninth Circuit to lift the emergency stay order preventing same-sex couples from marrying. However, the Ninth Circuit denied Harris's motion.

The California Supreme Court heard oral arguments on the certified question of standing in September 2011. The court ruled in November 2011 that the sponsors of Proposition 8, and other ballot initiatives, can defend them in court when the state refuses to do so. This ruling allowed defendant-intervenors Project Marriage and other groups to takeover defense of the law from the California government, which had previously indicated opposition to the continued enforcement of Proposition 8. Following this decision, the Ninth Circuit consolidated the issue of Walker's alleged conflict of interest with the primary appeal of the district court's ruling overturning Proposition 8. There has been speculation that the Ninth Circuit's decision to consolidate the case was designed to provide a clean appeal of the issues to the US Supreme Court.

JURIST Assistant Editor Kimberly Bennett summarizes the legal arguments in favor of striking down Proposition 8, pointing out that there is a judicial inclination over the last half-century towards expanding the notion of Fourteenth Amendment protections:

Historically, the Supreme Court has ruled that laws arbitrarily discriminating against a specific group are unconstitutional. ... To pass scrutiny and be held constitutional ... discriminatory laws and policies must be found to be supported by an "exceedingly persuasive justification" that is "substantially related to an important governmental objective," and it cannot be found to be based on stereotypes.

Recently, US courts have made significant steps toward the protection of gays and lesbians, indicating that there has been a slow movement toward their inclusion as a protected class under the Equal Protection Clause. In Romer v. Evans, the Court ruled that an amendment to the Colorado Constitution, which stated that there was no protected status based on sexual orientation, was held to be unconstitutional because it violated the Equal Protection Clause for lack of a "legitimate legislative end." In Lawrence v. Texas, the Court stated that, "[m]oral disapproval of this group ... is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause." Based on these cases, the rule is clear: if a law is intended to infringe on the rights of a certain group, there must be a rational and legitimate governmental interest to justify it.

The Fourteenth Amendment does not specify any groups in particular that should be protected. Instead, the Constitution provides a framework to determine which rights are fundamental, and dictates that these rights shall not be denied to anyone within its jurisdiction. In Zablocki v. Redhail, the Supreme Court established marriage as a fundamental right recognized under the Equal Protection Clause. It further established that courts should apply a rigorous level of scrutiny in cases dealing with fundamental rights. Any scrutiny regarding the constitutionality of banning same-sex marriage reveals that the reasons for its ban are based on outmoded values that cannot be tied to a rational basis or legitimate governmental interest. It is the courts that must break with discriminatory views, as they have done in the past.

The Ninth Circuit heard oral arguments in the consolidated appeal on December 9, 2011. The court ruled that Proposition 8 violated both the Due Process and Equal Protection Clauses of the Fourteenth Amendment on February 7, 2012. In the decision of the court, Circuit Judge Stephen Reinhardt wrote:
"Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right--the right to obtain and use the designation of 'marriage' to describe their relationships. ... Proposition 8 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 Constitution simply does not allow for 'laws for this sort.'"
The court also held that supporters of Proposition 8 had standing to appeal the law's overturn, and dismissed a claim to vacate the judgment below over claims of judicial bias.

JURIST Guest Columnist Vikram Amar wrote that the Ninth Circuit could have ruled that the initiative proponents lacked standing to defend Proposition 8, which may have been a more judicially sound method to invalidate the amendment as opposed to basing the decision on Romer v. Evans:

Had the Ninth Circuit held that the official proponents of Proposition 8 lacked Article III standing to defend the measure in federal court, Proposition 8 would die in California just as it does if Reinhardt's approach is allowed to stand. It would die because Governor Jerry Brown and Attorney General Kamala Harris (the only persons with proper standing in federal court to defend the measure) have made clear they will not defend it. A class action on behalf of all same-sex couples in California could be brought (as Proposition 8 challengers probably should have done in the first place), and then (after Perry and Harris decline to defend) a default judgment in favor of this class of plaintiffs and a corresponding statewide injunction against enforcing Proposition 8 would ensue.

This result would have been better for same-sex marriage proponents than Reinhardt's approach because even though the same result invalidating Proposition 8 would be reached: (1) California would join the ranks of the same-sex marriage states in the important national tally by virtue of decisions of elected California officials (Attorney General and Governor) and the voters who elected them, rather than by unelected federal judges (especially the notoriously liberal Reinhardt); (2); the likelihood of Supreme Court review would be much lower than it is even under Reinhardt's California-specific approach; (3) Judge Reinhardt could appear to be displaying judicial modesty and obedience by taking to heart the admonitions by the Supreme Court reversing a Ninth Circuit case he authored 15 years ago concerning the lack of initiative proponent standing in federal court; and (4) there would be no doctrinal externalities to other settings arising from Judge Reinhardt's curious reasoning.

Reflecting on the same decision, JURIST Guest Columnist Kevin Snider, Chief Counsel for the Pacific Justice Institute, wrote that the Ninth Circuit panel in Perry v. Brown unanimously acknowledged that a right to same-sex marriage is not supported by federal precedent, and that sexual orientation is not a "suspect classification" according to longstanding Supreme Court case law:
"[H]ad the Ninth Circuit decided to directly answer the question as to whether same-sex marriage is a fundamental right, the Court would have been obliged to follow Baker. Stated simply, the panel could not have found a constitutional right to same-sex marriage... [In addition to the Ninth Circuit], nine other circuits, covering 12 opinions over the span of more than 25 years, have come to the same conclusion that homosexuals are not a suspect class. Indeed, to date no circuit has come to a contrary conclusion. Because homosexuals do not belong to a suspect class, a sexual orientation claim will receive rational basis review."
Also examining Perry v. Brown, JURIST Guest Columnist Robert Rodes, wrote that while some legal recognition of same-sex relationships has gained widespread support, creating same-sex marriage rights must be left to the democratic processes:
Under Proposition 8, domestic partners only lack the name of marriage ... The court stated that the name is significant: "Domestic partnerships lack the social meaning associated with marriage." However, attaching the name of marriage to any such relation evokes strong grassroots opposition almost nationwide. Those of us who believe in democracy should be reluctant to attribute to that opposition a mere gratuitous wish to make fellow citizens feel bad because of their sexual orientation. I suggest that what is really involved is a strong intuition that the coming together of a man and a woman gives rise to a relation so different from all other relations as to require calling it by a different name.

Despite the publicity surrounding it, the ruling in Perry v. Brown has not settled the issue of same-sex marriage. Proponents of Prop 8 requested a new hearing [PDF] before the full US Court of Appeals for the Ninth Circuit, which blocked the court's ruling from taking immediate effect. On June 5, 2012, the Ninth Circuit denied the petition to rehear the case before the entire court.

In July 2012, members of the US House of Representatives filed an amicus brief with the US Court of Appeals for the Ninth Circuit, stating the negative impact the law has on same-sex couples. New York Attorney General Eric Schneiderman also filed his own brief with the US Supreme Court that same month further challenging DOMA.

The Alliance Defending Freedom was one of the parties that appealed the Ninth Circuit decision to the Supreme Court, stating that the Court should consider "whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples." In the same week as the appeal, a judge for the US District Court for the District of Connecticut ruled DOMA unconstitutional, further pressing the issue nationally. However, in New York and Hawaii, federal courts refused to hear challenges to state laws allowing and banning same-sex marriage in those states.

On December 7, 2012, the US Supreme Court granted certiorari in two separate cases dealing with same sex-marriage. In the case of Hollingsworth v. Perry, the Court will be examining the validity of Proposition 8. The second case, United States v. Windsor, will determine the constitutionality of Section 3 of DOMA. Briefs have been filed in support of same-sex marriage from sources including the respondent couples, the City of San Francisco and many business institutions across the country. California Attorney General Harris and the Obama administration also filed briefs urging the US Supreme Court to overturn Proposition 8.

The Court heard oral arguments in Hollingsworth on March 26, 2013 and in Windsor on March 27, 2013.

On June 26, 2013, the Supreme Court ruled in Windsor [PDF] that DOMA is an unconstitutional violation of the Equal Protection Clause, and reversed and remanded in Perry [PDF] because the proponents of Proposition 8 lacked standing.




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