February 23, 2012
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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.