Prop 8 trial update: a look at the plaintiffs’ and San Francisco’s motions against an en banc hearing
March 1, 2012
By Jacob Combs
Last week brought us the Prop 8 proponents’ blast to the past brief arguing why the 9th Circuit should reconsider last month’s panel ruling striking down California’s marriage ban. Today, the plaintiffs and the City and County of San Francisco filed their response briefs, which can be read below, in which they carefully and persuasively lay out why there is no need for a larger panel of the court to take up the case. Here’s a look at the arguments they make.
To begin with, the proponents argued that the panel’s reliance on the Supreme Court decision Romer v. Evans, which struck down a Colorado constitutional amendment that would have prohibited legal protections for gays and lesbians, should be reconsidered by the en banc panel. According to them, because the law struck down in Romer was a broadly worded provision that would have stripped many rights from gays and lesbians but Prop 8 only took away the term ‘marriage,’ the two laws are distinguishable, and the panel erred in citing Romer as precedent in striking down Prop 8. But as San Francisco rightly points out in its brief, that argument focuses too much on the details of the Romer case and fails to take into account the underlying philosophy of the Supreme Court’s decision. Colorado’s Amendment 2 served no rational governmental interest, and could therefore only be seen as an unconstitutional expression of moral disapproval of gays and lesbians. The most important aspect of Amendment 2 was not that its broad effect, it was its inability to further any governmental purpose.
In the same way, it is almost impossible to argue that Proposition 8 served any specific government interest. It left intact the many rights that gays and lesbians in California have regarding the recognition of their relationships and their ability to raise children, taking away only the right to call their unions ‘marriages.’ As San Francisco argues, “The panel correctly refused to ‘credit a justification for Proposition 8 that is totally inconsistent with the measure’s actual effect and with the operation of California’s family laws both before and after its enactment.’” (9)
The city also points out that the proponents are incorrect in arguing that Baker v. Nelson, a 1972 Supreme Court case brought by a gay couple seeking to marry that was summarily dismissed, should be controlling precedent prohibiting the 9th Circuit from addressing the issue of marriage equality. Because the panel’s decision does not address the inherent constitutionality of marriage bans in any state (let alone those that do not allow gays and lesbians to marry), it is not in conflict with Baker v. Nelson. Indeed, as the plaintiffs argue in their brief, even Judge Smith, is his dissent from the overall opinion, wrote, ‘the constitutionality of withdrawing from same-sex couples the right of access to the designation of marriage does not seem to be among the ‘specific challenges’ raised in Baker.” (10) Instead, as San Francisco point out, the panel’s decision conforms with every other case that has considered state laws that provide ‘separate by equal’ status to gay and lesbian couples, as California did before marriage equality was enacted by the case In re Marriage Cases. ”Courts evaluating these laws,” San Francisco writes, “have consistently held they violate state due process and equal protection guarantees, even under rational basis. (13)
In their brief, the plaintiffs go one step further, in effect arguing that if the court were to grant an en banc review, it could be necessary for it to rule on aspects of the case that the panel chose not to address. For instance, if the en banc panel were to uphold Proposition 8, they would have to address whether or not there is an inherent constitutional right to marriage equality, which the 3-judge panel declined to consider. In addition, the 3-judge panel did not address the exhaustive findings of fact that Judge Walker included in his original district court ruling striking down Proposition 8. In rehearing the case, the en banc panel might have to make a decision regarding the level of deference (if any) to be given to those findings of fact. In essence, the plaintiffs’ argument here is that the 3-judge panel was correct in showing great restraint when it upheld Judge Walker’s ruling, and that a rehearing in the 9th Circuit could possibly wade into areas of the case that the court does not necessarily need to consider.
Reading these two briefs side-by-side with the proponents’ briefs, it is extremely difficult to find any compelling reason why the 9th Circuit should vote for a rehearing of the panel’s February ruling. The proponents’ arguments rely on outdated law and a reading of Romer that only takes into account the specific facts of that case while refusing to extrapolate what those facts could mean for the Prop 8 case. As the plaintiffs and San Francisco make clear, the 9th Circuit’s first ruling on Prop 8 should be its last.