Equality On Trial

A look at the Prop 8 proponents’ opening brief in Hollingsworth v. Perry

January 24, 2013

Prop 8 trial

By Scottie Thomaston

The proponents of Prop 8 filed their opening brief in defense of the California constitutional amendment defining marriage as between a man and a woman on Tuesday.

The first major point is on their Article III standing. There are questions over whether proponents of Prop 8 (who are ballot initiative sponsors) had the authority to appeal the district court’s decision at all after state officials declined to appeal the ruling. There is a Supreme Court case – Arizonans for Official English v. Arizona – in which the Court expressed “grave doubts” that ballot initiative sponsors have Article III standing. And in the opinion, the Court noted that they couldn’t find a state law granting authority to proponents of ballot initiatives. At oral argument at the Ninth Circuit, the judges (two of whom were on the Arizonans panel) discussed the issue of their inability to determine whether California allowed ballot initiative sponsors authority to defend their initiatives or represent the state’s interests. So the Ninth Circuit sent the case to the California state supreme court to answer that question and the court decided that ballot initiative sponsors can step into the shoes of the state to defend the state’s interest. The Ninth Circuit found that adequate for Article III standing.

More below the fold…

The brief strongly suggests this is all that’s needed for standing:

This Court’s decisions leave no doubt that State law determines who is authorized to assert this interest on behalf of the State. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43,65 (1997); Karcher v. May, 484 U.S. 72, 81-82 (1987). Article III does not purport to control the manner in which States allocate their sovereign powers, and “principles of federalism require that federal courts respect such decisions by the states as to who may speak for them.” Pet.App.35a-36a. Indeed, such decisions are “of the most fundamental sort,” for it is “[t]hrough the structure of its government, and the character of those who exercise government authority, [that] a State defines itself as a sovereign.” Gregory v. Ashcroft , 501 U.S. 452, 460 (1991). Here, the Supreme Court of California has unanimously confirmed that Petitioners have “authority under state law,” Karcher, 484 U.S. at 82, to defend Proposition 8 “as agents of the people” of California “in lieu of public officials” who refuse to do so, Arizonans, 520 U.S. at 65.

Proponents’ view is that the “grave doubts” expressed in Arizonans are satisfied by the California state court’s answer to the certified question:

In dicta,this Court discussed, but ultimately did “not definitively resolve” whether the principal sponsor of an Arizona ballot initiative had standing to appeal a decision striking down that measure. Arizonans, 520U.S. at 66. Citing Karcher, the Court explained that it had previously “recognized that state legislators have standing to contest a decision holding a state statute unconstitutional if state law authorizes legislators to represent the State’s interests.” Id. at 65. Unlike in Karcher, however, the Court was “aware of no Arizona law appointing initiative sponsors as agents of the people of Arizona to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” Id. For this reason, the Court expressed “grave doubts” about the standing of the Arizona initiative sponsors to appeal.

The proponents ask the Court to vacate both the Ninth Circuit and the district court opinions in the event that there is no Article III standing, leaving nothing. And they suggest that even were the Court to decide that the district court could properly hear and decide the merits, the effects should be limited to the same-sex couples who were plaintiffs:

If this Court holds, contrary to the foregoing, that Petitioners lack standing to defend Proposition 8 on appeal, the Court would then “have an obligation. . . to inquire not only into this Court’s authority to decide the questions petitioners present, but to consider, also, the authority of the lower courts to proceed.” Id. at 73. Obviously, the Ninth Circuit’s judgment would have to be vacated. See FW/PBS, Inc.v. City of Dallas, 493 U.S. 215, 235-36 (1990). In addition, the sweeping opinion and state-wide injunction entered by the trial court should be vacated as well. At least as a prudential matter, Plaintiffs’ case, brought against a handful of carefully selected, congenial official defendants, none of whom offered any defense of Proposition 8, may not have presented even a case or controversy appropriate for adjudication. See INS v. Chadha, 462 U.S. 919, 939-40 (1983). More important, Article III requires that a “remedy . . . be limited to the inadequacy that produced the injury in fact that the plaintiff has established.” Lewis v. Casey, 518 U.S. 343, 357 (1996). Thus, even if the Court concludes that this case was justiciable in the district court, that court lacked remedial jurisdiction to award any relief beyond a default judgment limited to the four named plaintiffs.

As the Ninth Circuit’s decision was largely based on the 1996 Supreme Court decision in Romer v. Evans, much of the brief is spend arguing that Romer is inapplicable here. The Ninth Circuit had pointed to language in Romer highlighting that Amendment 2 in Colorado (the amendment under review in that case) took pre-existing rights away from gays and lesbians. In that case it was anti-discrimination measures in two jurisdictions in the state.

The proponents’ brief discusses this, referring to it as a “timing” issue:

The lynchpin of the Ninth Circuit’s decision invalidating Proposition 8 was its insistence that a different analysis is required when a state-law right is “withdrawn” than when it is not extended in the first instance. Pet.App.68a. But this proposition is foreclosed by this Court’s decision in Crawford, which makes clear that when a State repeals a law the relevant inquiry is simply whether that law was “required by the Federal Constitution in the first place.” 458 U.S. at 538. Indeed, Crawford emphatically “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.”

Most of the brief is spent attempting to distinguish Romer and suggest that Crawford‘s analysis precludes a decision striking down Prop 8. The Ninth Circuit had written that Crawford is not relevant because Romer struck down Amendment 2 in part because it took rights away – anti-discrimination measures – and those measures weren’t already required by the 14th Amendment. The Ninth Circuit also pointed to USDA v. Moreno and wrote that the government was not obligated to provide food stamps in the first place. (The regulation struck down in that case barred “hippies” from receiving food stamps.)

The Ninth Circuit noted that the Court in Crawford held that there was no “racial classification” in the case – the provision just barred specific remedies.

The proponents’ brief suggests:

First, this Court’s findings that Proposition 1 did not draw a racial classification and was not motivated by race, see Pet.App.67a-68a, meant only that it was subject to rational-basis review, rather than heightened scrutiny.
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Second, the court below emphasized that even after Proposition 1, California’s Constitution still provided a “more robust ‘right . . . than exists under the Federal Constitution.’

The lesson of that case, they write, is that:

a State is no less free to withdraw state constitutional rights that exceed federal constitutional requirements than it was to extend them (or not) in the first place.

Proponents’ argument as to why Romer doesn’t apply is straightforward:

But nothing in Romer suggests that Amendment 2 would have been valid had it only been enacted before Aspen, Boulder, and Denver passed ordinances banning discrimination on the basis of sexual orientation. Nor did Romer suggest that a constitutional amendment identical to Amendment 2 would be valid in a State that had no preexisting local laws protecting gays and lesbians from discrimination. Indeed, this Court struck down Amendment 2 on its face, not merely as applied to the handful of jurisdictions in Colorado that had previously enacted antidiscrimination ordinances protecting gays and lesbians.

But proponents go even further, and tie in Congress (DOMA) to their cause:

In any event, there is no merit, legal or logical, in the panel majority’s theory that “[w]ithdrawing froma disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.” Pet.App.55a. Obviously the rationality of a classification does not turn on the timing of its adoption – if it was reasonable for California to draw a line between opposite-sex couples and other types of relationships (including same-sex relationships) for 158 years before the California Supreme Court’s ruling in the Marriage Cases, it is also reasonable for California to draw the same line, for the same reasons, after the 142-day hiatus caused by that short-lived decision. And if it is rational for Congress and 40 other States to distinguish between opposite-sex couples and other types of relationships for purposes of marriage, surely it is rational for California to do so as well.

They also suggest that it is “misleading” to say that Prop 8 withdrew rights because signatures for Prop 8 were submitted before the California supreme court decision:

Finally, characterizing Proposition 8 as “withdrawing” or “eliminating” rights is misleading. The Attorney General issued the initiative’s title and summary for signature petitions in November 2007. Signatures qualifying Proposition 8 for the ballot were submitted for verification before the California Supreme Court issued its decision requiring the State to redefine marriage, and that decision did not be-come final until after Proposition 8 officially qualified for the ballot. Indeed, but for the California Supreme Court’s refusal to stay its decision pending the People’s vote, see Strauss, 207 P.3d at 68, California never would have recognized same-sex relationships as marriages.

Earlier in the brief, they had argued that Prop 8 was rational as a response to the court decision.

They suggest that California is allowed to reserve marriage for opposite-sex couples only, even under the Equal Protection Clause. They point to the 1972 one-sentence summary dismissal (without briefing or argument) in Baker v. Nelson, suggesting it was “correctly decided.”

Then they argue that the relevant classification isn’t based on sexual orientation but rather a line was drawn between opposite-sex couples and every other type of couple:

By defining marriage as the union of man and woman, societies throughout history have drawn a line between opposite-sex couples and all other types of relationships, including same-sex couples. This is the precise classification at issue here,and it is based on an obvious difference between same-sex and opposite-sex couples: the natural capacity to create children, which as a matter of indisputable biological fact is limited to sexual relationships between a man and a woman. As demonstrated below, this distinction goes to the heart of society’s traditional interest in regulating intimate relationships. Given this undeniable biological difference, the traditional definition of marriage satisfies the Equal Protection Clause under any standard of review, for even when heightened scrutiny applies, “[t]he Constitution requires that [a State] treat similarly situated persons similarly, not that it engage in gestures of superficial equality.”

In a footnote, they add:

Unlike laws that explicitly classify individuals based on sexual orientation, the traditional definition of marriage classifies on the basis of sexual orientation only to the extent that it distinguishes between same-sex couples and opposite-sex couples. And this distinction reflects biological realities closely related to society’s traditional interest in marriage. To resolve this case, the Court thus need hold only that the biologically based, plainly relevant distinction drawn by the traditional definition of marriage calls for nothing more than rational-basis review. This Court need not determine what level of scrutiny should apply to other sorts of laws that classify individuals based on sexual orientation.

In other words, because marriage laws only classify based on sexual orientation to the extent that gay or lesbian sexual orientation is different (in that same-sex couples can’t biologically reproduce together by themselves) they should be reviewed under rational basis review and not protected more fully by heightened judicial scrutiny.

Then they move on to the rational bases for the law:

(1) Procreation and child-rearing

(2) Proceeding with caution

(3) Restoring democratic governance

In the discussion of the rational bases for the law, there is a lot of discussion “redefining marriage” which currently exists to provide “special recognition” to heterosexual couples:

By providing special recognition, encouragement, and support to committed opposite-sex relationships, the traditional institution of marriage preserved by Proposition 8 seeks to channel potentially procreative conduct into stable, enduring relationships, where that conduct is likely to further, rather than harm ,society’s vital interests in responsible procreation and childrearing.

And lastly they argue that Prop 8 does not dishonor gays and lesbians. They suggest that:

Providing special recognition to one class of individuals does not demean others who are not similarly situated with respect to the central purpose of the recognition. It is simply not stigmatizing for the law to treat different things differently, see, e.g., Johnson, 415 U.S. at 383, or to call different things by different names.

Oral arguments in the case will take place on March 26, ten years to the day Lawrence v. Texas was argued. Responses to the proponents’ brief are due February 21.

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