Leave a Comment Jacob Combs
The Prop 8 proponents’ motion to rehear: a blast to the (legal) past
February 23, 2012
9th Circuit Court of Appeals Briefs Prop 8 trial
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By Jacob Combs
This Tuesday, the proponents of Prop 8 filed a motion to have their appeal of Judge Walker’s decision striking down Prop 8 reheard by a larger en banc panel of the 9th Circuit’s judges. In their 50+ page brief, the proponents lay out the reasons why they think the 2-judge majority that upheld Judge Walker’s decision earlier this month erred in their ruling, and attempt to make a case with which they can prevail before a larger appeals panel. Here’s a look at the petition, the proponents’ arguments, and why they’re unlikely to succeed in the next step of the process.
In their brief, the proponents essentially make two major arguments: 1) that the 9th Circuit panel erred in relying on the Supreme Court case Romer v. Evans in making its decision to strike down Prop 8 and 2) that Prop 8 should pass a rational review test because it encourages society’s vital interest in ‘responsible’ procreation. I will consider each of these claims in turn.
The proponents make their most intriguing arguments on the subject of Romer v. Evans. In that case, decided in 1996, the Supreme Court struck down Amendment 2, a Colorado constitutional amendment that would have prohibited state jurisdictions from taking any legislative, judicial or executive action to afford legal protections to gays and lesbians. In its ruling, authored by Justice Anthony Kennedy, the Supreme Court wrote:
[Amendment 2] is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.
The 9th Circuit relied heavily on Romer when it invalidated Prop 8 earlier this month, seeking to point out the similarities between the two laws. Quoting from Romer, Judge Stephen Reinhardt wrote:
Proposition 8 is remarkably simliar to Amendment 2. Like Amendment 2, Proposition 8 “singles out a certain class of citizens for disfavored legal status….” Like Amendment 2, Proposition 8 has the “peculiar property” of “withdrawing from homosexuals, but no others,” an existing legal right–here, access to the official designation of ‘marriage’–that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Like Amendment 2, Proposition 8 denies “equal protection of the laws in the most literal sense” because it “carves out” an “exception” to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had preiovusly enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Propsition 8 “by state decree…puts homosexuals in a solitary class with respect to” an important aspect of human relations, and accordingly “imposes a special disability upon homosexuals alone.” And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it “only by enlisting the citizenry of the state to amend the State Constitution” for a second time. (44-5, internal quotations and edits omitted)
What Judge Reinhardt does here is very powerful: he takes the logic the Supreme Court applied to a case that is similar but has some significant differences, and applies that logic to the new facts of the Prop 8 case. This is what judges are supposed to do. He goes on to acknowledge that Amendment 2′s effect was much broader than Proposition 8′s, but nevertheless recognizes that Prop 8 does “work a meaningful harm to gays and lesbians” that “must be justified by some legitimate state interest” (46). In his opinion, Judge Reinhardt argues that it was unconstitutional for California’s citizenry to revoke gay and lesbian couples’ right to marry after it had already been afforded to them by the California Supreme Court.
Prop 8′s proponents will have none of this, arguing, “the panel majority’s reading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” (7) In their eyes, the timing of Prop 8 and the California Supreme Court decision that legalized marriage equality in the state is essentially irrelevant. That court decision, In re Marriage Cases, was decided in May of 2008; Prop 8 was passed in November of the same year. In their brief, the proponents argue that Prop 8 was simply an attempt by California’s citizenry to restore a traditional definition of marriage that had been undermined by a judicial decision, writing, “Certainly nothing in Romer so much as hints that the Federal Constitution bars the People of a State from restoring a longstanding law that has been briefly set aside by their courts.” (14)
But the proponents then go on to undermine this very assertion, noting that “the decision in the Marriage Cases was issued after Proponents had collected the necessary signatures to qualify Proposition 8 for the ballot and did not become final until after Proposition 8 had been officially qualified for the ballot.” (12-13) Had the California Supreme Court stayed its decision pending the outcome of the Prop 8 initiative, the proponents argue, marriage equality would never have been legal in California.
This is pure hypocrisy. Either Prop 8 represented the citizenry’s desire to amend the state constitution following what they saw as judicial overreach, or it predated the court decision, and was in no way a response to it. The proponents cannot have it both ways, although they try hard to. Taking their words (at least on pages 12-13) at face value, then, I would reject the argument that Prop 8 was a response to a judicial decision, and instead would argue that it was an attempt to go further than Proposition 22, the voter-approved law banning marriage equality that would be struck down in In re Marriage Cases, by enshrining a prohibition on marriage equality in the state constitution.
In their brief, the proponents do bring up the good argument that it would be difficult to view Romer as a case that prohibits a state from taking away any right that it had chosen to offer before. Nevertheless, they are mistaken in believing that Judge Reinhardt’s decision is only based on the idea of taking away a previously bestowed right. On the contrary, the 9th Circuit’s decision goes much further by refuting the proponents’ argument that Prop 8 was related to a rational governmental interest. This brings me to the proponents’ second argument: that Prop 8 promotes responsible procreation. Follow me to the extended entry for more on that.
The proponents have trotted out the responsible procreation argument at the district court level and at the 9th Circuit, and they are now trying to argue once again that it provides a rational basis for upholding Prop 8. The reason their argument hasn’t worked so far (and won’t work in the future) is that it really is based on a fantasy. Essentially, it goes like this. Because straight people can reproduce, and there is the potential for procreation every time a straight couple has sex, marriage’s “existential societal purpose is, and has always been, to channel potentially procreative relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.” (8-9) Gay people can’t reproduce, so there’s no need to incentivize responsible procreation for them by bestowing the title of marriage on their relationships. The proponents continue:
That the traditional definition of marriage confers a symbolic benefit on committed opposite-sex couples does not “dishonor” gays and lesbians as a class or express official “disapproval of them and their relationships.” Op. 77.8 It is simply not true that when the government provides special recognition to one class of individuals, it demeans others who are not similarly situated with respect to the central purpose of the recognition. (39)
There are several problems with this argument. First off, it requires a limited and in some ways outdated consideration of what marriage means by focusing on sex and childbearing to the exclusion of the other reasons that couples (both straight and gay) enter into marriages. As the plaintiffs’ witnesses argued during the Prop 8 trial in 2010, marriage has transformed in modern law and society away from a gendered institution (i.e., a man marries a woman and must provide for her so that she can be a homemaker) and has instead evolved into an institution by which two equal individuals choose to join themselves in the eyes of the law to acknowledge the significance of their bond.
Second, it is patently false to argue that American marriage law is exclusively (or even primarily) focused on promoting responsible procreation. This argument has been made before, but it is worth repeating now: marriage laws in the U.S. are open to all heterosexual couples, regardless of their ability to procreate. How would a marriage between two elderly individuals, for example, and man and a woman who met at a retirement home, possibly fit in to the proponents’ idea of what marriage mean?. Because the woman in that marriage would no doubt have already experienced menopause, their marriage by default cannot be for the purpose of encouraging responsible procreation. Yet as a society, we still choose to call their union a marriage. Why? Because it is the joining of two adults who have chosen to be seen in the eyes of the law as concomitant entities rather than as two unassociated individuals. Indeed, Justice Antonin Scalia used this same reasoning in his dissent from Lawrence v. Texas to demonstrate (perhaps unwittingly) how flimsy the argument of restricting marriage to heterosexuals in order to promote procreation really is.
Even more importantly, though, Prop 8 in no way encourages, or indeed has any effect on, responsible procreation. The proponents of Prop 8 have never been able to demonstrate how denying gay and lesbian couples the right to marry furthers any purported government interest in channeling heterosexual couples into marital relationships. They are quite simply completely separate issues. While the proponents spend many pages of their brief arguing that government should use marriage as a means to promote responsible procreation, they never attempt to make the claim that Prop 8 actually do so, because they can’t. Instead, they argue that this example could be a rational basis for upholding Prop 8, without making the logical connection necessary for it to actually do so.
Finally, the proponents rehash their weak and petty argument that Judge Walker’s decision should be vacated due to his sexual orientation. Our side has already thoroughly debunked this specious assertion, and the proponents’ motion to vacate was struck down at the 9th Circuit by a unanimous 3-0 vote. Because of that, I will waste no space here on that issue.
Overall, the proponents motion for rehearing is a collection of arguments that are occasionally well thought but for the most part are simply outdated. While the proponents make a thorough case for the need to encourage responsible procreation amongst heterosexual couples, they fail to connect that need to any modern American marriage laws, let alone Prop 8, which did absolutely nothing to affect the way straight couples in California reproduce. In doing so, they also fail to make a compelling case against Judge Reinhardt’s careful ruling, which uses the philosophy and spirit of Romer v. Evans to strike down Prop 8 as an unconstitutional attempt to take rights away from a minority based solely on moral disapproval. These arguments aren’t new, and they haven’t convinced either of two courts that they have been before. In reading the proponents’ brief, it seems unlikely that the 9th Circuit would vote to reconsider Judge Reinhardt’s opinion.
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27 Comments Leave a Comment
1.
Sagesse | February 23, 2012 at 1:15 pm
@
2.
Straight Dave | February 23, 2012 at 1:31 pm
I take issue with Proponents' use of the Crawford analogy, which refutes "the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.” That may well be true, but it doesn't apply to the Prop 8 case.
In my view, CA didn't "choose" to extend any new rights, which might then be subsequently revoked (according to Crawford). When a law is declared unconstitutional, it is considered to have been so from its inception. The only thing that happenned here was that this fact was finally recognized by the CA SC. From that point on, going back to an unconstitutional state is no loger an option.
3.
J. Merentes | February 23, 2012 at 2:12 pm
How long it will take for the 9th Circuit to respond to this bunch of nonsense?
4.
Bryce from DC and KS | February 23, 2012 at 2:14 pm
Right now the Senate in Maryland is debating and is expected to vote soon. I am SUPER nervous!
5.
Leo | February 23, 2012 at 2:16 pm
"It is simply not true that when the government provides special recognition to one class of individuals, it demeans others who are not similarly situated with respect to the central purpose of the recognition."
I think this is an argument in the same vein as Maggie Gallagher's favorite "calling different things different names is not discrimination" — too general to be useful. Sometimes it is and sometimes it isn't.
Providing special recognition to war veterans may not demean non-veterans. But if the government provided special recognition to Christians (for the "central purpose" of worshiping Christ), it would clearly demean non-Christians.
6.
Guest | February 23, 2012 at 2:20 pm
Per yesterday's order, the plaintiffs have up to three weeks to file their response (they can file it early if they want to speed things along a bit). Once the response has been filed, the court should decide in about five weeks. See General Order 5.5(a) and (b) (three weeks for circulating memoranda and two weeks for voting). http://www.ca9.uscourts.gov/datastore/uploads/rul…
7.
Bryce from DC and KS | February 23, 2012 at 2:28 pm
Ok, so Twitter is abuzz with comments that the opposition to marriage equality in Maryland is filibustering. My computer at work won't let me play their live stream. Anyone know what is going on?
8.
Steve | February 23, 2012 at 2:33 pm
I hope the judges give them some rope to hang themselves with. Simply ask "How exactly does the denial of a marriage license to a gay couple induce a straight couple to procreate responsibly? How exactly does that work?" And then keep asking for a detailed explanation when they weasel around
9.
Brad M | February 23, 2012 at 3:20 pm
@Bryce, not sure but I'm following Twitter all the same! I thought they had the votes to get by a filibuster or am I wrong?
10.
Brad M | February 23, 2012 at 3:28 pm
They did it! http://sdgln.com/news/2012/02/23/breaking-news-ma…
11.
Jamie | February 23, 2012 at 3:33 pm
I think it could be claimed that the State chose to extend marriage rights to gays and lesbians when they wrote their constitution and guaranteed equality to all their citizens.
I don't think Crawford says that states can grant and rescind rights willy nilly. If a right is revoked, there would still have to be a rational explanation for revoking the right. A state could not lower the age to get a drivers license to 12 and then 2 weeks later ban 14 year olds from having a drivers license.
12.
Jamie | February 23, 2012 at 3:39 pm
I wish the State would pass a law requiring proponent's of an initiative, defending it in court, against the decision of the State, to post an escrow account to cover attorney fees of the opposing side. California is going to get royally screwed when Proposition 8 fails, AFER files for reimbursement of attorney fees, and then "Protect Marriage" folds and disappears into the underworld of history.
13.
JefferyK | February 23, 2012 at 3:56 pm
"How would a marriage between two elderly individuals, for example, and man and a woman who met at a retirement home, possibly fit in to the proponents’ idea of what marriage mean?" How would a marriage between a gay man and a lesbian possibly fit? I mean, that would be perfectly legal, but the likely of procreation is roughly zero.
14.
HonestPerson | February 23, 2012 at 4:04 pm
You have the question backwards. Unmarried, we are all the same.
The question is: "How exactly does granting a marriage license to to an opposite sex couple encourage responsible procreation?"
15.
Bob | February 23, 2012 at 4:17 pm
In theory you'd be right. In practice you would not. It's far from unprecedented (though not nearly as common as it used to be) for a gay man to marry a lesbian (or vice versa). The idea of course would be…well various naturally…get their families off their respective backs; try to convert themselves into heterosexuals; those are the most problematic. At the other end of the spectrum is the idea that two people, both gay/lesbian, might decide that they really want to have kids, and decide to do it together for simple sake of ensuring that their offspring have two parents.
Science fiction writer Samuel Delany was married to the poet Marilyn Hacker for many years. Both are gay; Delany was already out. Hacker was not. They decided one day to experiment with sex; she got pregnant. As abortion was at that time (1959) illegal and potentially dangerous they figured they would keep the kid and get married. So the likelihood of procreation is far from zero.
16.
Bob | February 23, 2012 at 4:18 pm
So the argument about "responsible procreation" really boils down to the notion that heterosexuals need to be protected from themselves and their urges.
17.
nightshayde | February 23, 2012 at 5:20 pm
What better reason for a marriage could there be?
Wait … what?
/sarcasm
18.
Alyson | February 23, 2012 at 8:42 pm
So if marriage is only to encourage responsible procreation are they suggesting we just throw all the 'already responsible procreators' under the bus by not providing the same stability for every family with kids? If I want to procreate responsibly and not by accident – I'm not allowed to get married first? I hope our side highlights the four boys being raised by the plaintiffs and how denying their parents marriage goes against the encouraging responsible procreation argument. They are relying on theoretical biology and not actual access to family planning avenues for every couple.
19.
Shannon | February 24, 2012 at 4:22 am
Rather… I think it boils down to the notion that conflicted bisexuals need to be protected from their urges.
20.
AnonyGrl | February 24, 2012 at 6:18 am
Hmmm… what about us non-conflicted bisexuals who are not going to have any irresponsible procreation because we were thoroughly educated in the processes of birth control and disease prevention?
I guess we will just have to muddle through.
21.
Leo | February 24, 2012 at 7:01 am
Yes, and the argument about "deinstitutionalization" boils down to, "People are stupid and have one-track mind. They think "man and woman marry, man and woman make baby." We shouldn't give them any other ideas."
22.
R J R | February 24, 2012 at 9:34 am
So putting it all together, we're talking about the end of April to see whether we're going to go through the en banc process, which will add months to the overall timetable, or whether the proponents will have to try punting to SCOTUS which, as has been discussed, is not a slam-dunk (mixed metaphor – my apologies).
The question then becomes will either the 9th or SCOTUS grant an injunction against enforcement of Walker's ruling until SCOTUS either takes the case and rules on it or denies certiori or, worst of all, remands the case back to the 9th so we can start all over again – that is a possibility, right? Could one of the more informed speak to the possibility of remanding?
23.
Eric | February 24, 2012 at 10:00 am
This argument sounds a lot like Plessy v. Ferguson.
24.
John D | February 24, 2012 at 10:38 am
Just a clarification on Samuel R. Delany and Marilyn Hacker.
I knew from reading Delany's own memoir, "The Motion of Light in Water" that he and Hacker were married in the 1960s. I checked Wikipedia. Iva Hacker-Delany was born in 1974. Roe v. Wade was the year before that. Delany and Hacker separated and divorced shortly thereafter.
Delany did note that while interracial marriage was legal in New York in 1961, most landlords would not rent to interracial couples.
25.
Ophian | February 24, 2012 at 11:34 am
Wha? Count me as another non-conflicted, non-procreating bisexual for marriage equality.
26.
R J R | February 25, 2012 at 7:53 am
I received a very thoughtful answer from a friend who is a constitutional law professor. The extremely shortened version of his answer is that while it is possible, it is highly unlikely on the grounds that there is no new case law which might affect the outcome. He followed that with the comment that it is possible that the en banc Ninth Circuit, or even the Supreme Court, could issue some substantive ruling which finds the district court applied the wrong standard and send the case back. My friend suggested that given the posture of the case, that would also be unlikely.
27.
Diana | March 2, 2012 at 9:58 am
Marriage is between a man and a woman. That its what the majority of voters passed with the Yes on Prop 8 side winning the popular vote. However, our Democratic majority elected officials did not have the decency to uphold the voters posititon on this issue in the courts. Therefore I hope that this issue goes to the US Surpreme court and that it will win. Marriage is between a man and a woman! Just like the majority of voters passed in 2008!
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