August 31, 2012
By Jacob Combs
As the plaintiffs in the Prop 8 case did early last week, the City and County of San Francisco has filed its own brief in opposition to the Prop 8 proponents’ request that the Supreme Court take up the 9th Circuit appellate decision striking down the law. Like the plaintiffs, San Francisco’s central argument is that the Supreme Court should simply decline to hear the case, allowing the 9th Circuit’s ruling to stand without making any wider precendential argument. (For those who have been following the case from the early days, it is now technically known as Hollingsworth v. Perry.)
Taking a leaf out of the 9th Circuit’s ruling, San Francisco’s brief delineates the constitutional question at the heart of the appeal in its most narrow form: did California violate the Equal Protection Clause of the U.S. Constitution when it acted to withdraw only the title of ‘marriage’ from its gay and lesbian citizens without rescinding any of the rights and privileges that marriage entails?
Whereas the district court struck down Prop 8 in a broad ruling affirming that gay and lesbian individuals have a fundamental right to marry under the federal constitution, the 9th Circuit declined to take on that issue, instead arguing that the Constitution prohibits a State from taking away a previously enjoyed benefit from a group without a rational basis through the operation of an initiative campaign based on negative stereotypes.
San Francisco argues that the 9th Circuit was correct in basing this decision primarily on the Supreme Court case of Romer v. Evans, a 2003 ruling in which the Court struck down a Colorado law that rolled back legal protections for gays and lesbians and prohibited them from seeking those protections in the future through any means. Follow the link for a step-by-step analysis of San Francisco’s opposition brief.
Romer v. Evans
Because of the appellate court’s reliance on Romer, the proponents of Prop 8 have argued that the 9th Circuit mistakenly applied the Supreme Court’s precedent, making the case that the appeals court erred “by distinguishing between removing an existing right from same-sex couples and never granting that right in the first place” (11). They argue that the people of California simply returned things to the way they were in terms of marriage rights for gays and lesbians, but as San Francisco points out:
“[T]he Ninth Circuit’s understanding of Proposition 8 was compelled by the California Supreme Court, which had already determined as a matter of law that Proposition 8 did not ‘restor[e] the traditional definition of marriage,’ … but instead eliminated an existing constitutional right” (11).
San Francisco also argues that the distinction between the broadness of Romer, which denied gays and lesbians a wide swath of legal protections, and Prop 8, which surgically removed one right from LGBT Californians, does not refute the basic logic behind the 9th Circuit’s decision: in both cases, the city points out, it is the “peculiar operation” (12) of the laws that makes it so unlikely that either was passed for any legitimate governmental reason.
To this end, San Francisco pushes back in its brief against a claim made by the proponents that the Supreme Court case of Crawford v. Board of Education, where the Court upheld a California constitutional amendment prohibiting state courts from using busing to combat school segregation, provides a framework for upholding Prop 8. In Crawford, the Supreme Court “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede” (13).
Crawford and Bruning
But as San Francisco argues, Crawford doesn’t in itself explicitly allow for the rolling back of rights; rather, it says that states may roll back such rights, but only when they have a compelling, legitimate interest in doing so. It is that legitimate interest that the proponents of Prop 8 have repeatedly failed to articulate.
The proponents have consistently attempted to argue that Prop 8 encourages ‘responsible procreation’ in California, pointing in their brief to the Supreme Court to the 8th Circuit case of Citizens for Equal Protection v. Bruning, which upheld an anti-marriage equality amendment to the Nebraska state constitution by recognizing the state’s interest in “steering procreation into marriage by conferring a benefit on opposite-sex couples alone.”
In truth, though, Bruning argues against the proponents’ claim. Nebraska offers no recognition whatsoever to gay and lesbian couples, and does not recognize their families in the eyes of law either. In California, of course, the exact opposite is true, and the 9th Circuit correctly ruled that Prop 8 “had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California” and thus “is not rationally related … to … [this purported interest, whether or not the interest would be legitimate under other circumstances" (17).
Baker v. Nelson
San Francisco then goes on in its brief to reject the proponents' notion that Baker v. Nelson, a 40-year old Supreme Court case dismissing a Minnesota gay couple's constitutional challenge seeking to be married, precluded the district court and 9th Circuit from deciding the Prop 8 case.
Because of Supreme Court procedure at the time, Baker had the effect of becoming binding precedent. As San Francisco points out, the 9th Circuit explicitly avoided the issue of a fundamental right to marriage for gays and lesbians, focusing only on whether California could take away the title of 'marriage' from gay and lesbian couples. Because of this, the Prop 8 case in no way asks the same constitutional questions, nor does it raise the same issues, that Baker did.
As with Bruning, Minnesota offered no rights or recognition to gay couples when Baker was decided; California does. In addition, Supreme Court precedent regarding gay people has changed since 1972, most notably in the 2003 Lawrence v. Texas decision upholding gays and lesbians' right to sexual privacy under the Due Process Clause. For both these reasons, Baker should not apply as binding precedent over the Prop 8 case—a point which even the dissenting judge on the 9th Circuit panel agreed with, San Francisco notes.
Other marriage equality cases in the courts
Just as importantly, San Francisco argues, the issue of the constitutionality of laws denying gays and lesbians equal marriage rights is a question that should continue to make its way through the courts. The 9th Circuit's decision specifically limited itself to California, and would have little impact on other states in the circuit, as evidenced by the Hawaii case of Jackson v. Abercrombie, in which a district judge upheld that state's lack of marriage equality.
Equal marriage rights continue to be debated at the state level, with four ballot campaigns on the issue scheduled for this November. And, of course, there are currently six petitions seeking the Supreme Court's review of the Defense of Marriage Law, and any decision on DOMA and the proper level of judicial scrutiny for laws affecting gays and lesbians would no doubt have an effect on laws regarding marriage for gays and lesbians.
And finally, as San Francisco notes, there is the question of the proponents' standing to pursue the appeal in federal court. Because none of the official defendants of Prop 8 defended the statute in court, the proponents of the ballot measure intervened to do so instead. Under previous Supreme Court precedent, it is unclear if such groups have standing to pursue federal appeals.
The 9th Circuit, in ruling that the proponents did have standing, relied on the California Supreme Court's decision that the proponents had standing under California state law. But the Supreme Court would have to take up this issue itself, potentially forging new ground on the issue of standing, which San Francisco counsels against.
The next step
Taken as a whole, San Francisco's brief follows the contours of the plaintiffs': the 9th Circuit was correct in using Romer to uphold the district court decision striking down Prop 8 and created no inter-circuit conflicts in so doing, so the Supreme Court should decline to take the case. And even if the high court doesn't agree with the 9th Circuit, the briefs say, the Prop 8 case isn't the one they should take up to decide the issue of marriage equality, because of the standing question. Yet even if they do take up the case, the briefs go on to argue, Prop 8 still should fail because it doesn't effect any rational governmental purpose, least of all promoting responsible procreation.
Seen in this way, the two briefs lay out legal arguments that offer a series of fallback positions: the Supreme Court should accept this argument, they say, but if it doesn't, it should accept this other argument instead, and if it doesn't—and so on.
What's most striking is that AFER (the organization that filed the Prop 8 lawsuit in the first place) originally was adamant about its desire to progress the case to the Supreme Court. This was the case, they argued, that would establish full federal marriage equality in America. They were certainly right that the Prop 8 case had that potential, and the district court decision powerfully made a sweeping argument in favor of that position.
But the 9th Circuit irrevocably changed the game. And whether it was correct in its reasoning or even wise to do so, that's the nature of the judicial game. It's why we have three levels of judicial review. Because of the 9th Circuit's ruling, the Prop 8 case is no longer about marriage equality, at least in terms of legal arguments; now it's about whether a state can take away a liberty that it has afforded a class of citizens without offering any legitimate governmental purpose.
AFER and San Francisco's decision to change their arguments is a wise one: for now, the best ruling for the Prop 8 case at the Supreme Court is no ruling. The 9th Circuit's opinion would stand, Judge Walker's decision would be limited but still return marriage equality to the nation's most populous state, and we would wait for another marriage equality case to be heard by a hopefully friendlier Supreme Court.
San Francisco's Opposition Brief (h/t to Kathleen for providing this) via Scribd: