David Boies and Ted Olson, lead attorneys on behalf of AFER, at a March 2010 TimesTalk forum. | COURTESY: SARA KRULWICH/ THE NEW YORK TIMES
Proposition 8’s Official Proponents have asked the US Supreme Court to review the Ninth Circuit Court of Appeals’ decision that their initiative violates the 14th Amendment of the Constitution. The Proponents were allowed to intervene in defense of Prop 8 after California’s governor and attorney general declined to do so.
Attorneys for the plaintiffs, who under the leadership of the American Foundation for Equal Rights (AFER) challenged the constitutionality of Prop 8, announced they would oppose Supreme Court review, but were ready to defend their Ninth Circuit victory before the high court if necessary.
The Proponents’ petition, filed with the Supreme Court on July 30, framed the question as “whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”
Proposition 8 was enacted by California voters in November 2008, less than five months after same-sex couples there began marrying as a result of a State Supreme Court ruling that denying marriage rights to same-sex couples violated the California Constitution.
Prop 8's enactment was immediately challenged in state court, but was upheld by the California Supreme Court early in 2009. However, the California high court said that Prop 8's enactment had no effect on its own prior state equal protection and due process ruling, holding that same-sex couples were entitled to all the rights and benefits of marriage, even without the name, and that marriages conducted prior to its enactment remained valid. Since November 2008, then, same-sex couples have only been able to enter into “domestic partnerships,” but those enjoy all the state law rights of marriages.
The same week that the California Supreme Court upheld Prop 8, AFER filed suit in the San Francisco federal district court. In 2010, Judge Vaughn Walker ruled for the plaintiffs. Prop 8’s Proponents appealed that ruling to the Ninth Circuit, which earlier this year affirmed Walker's ruling but on narrower grounds.
Walker ruled that same-sex couples have an equal protection and due process right to marry under the 14th Amendment. The Ninth Circuit panel, in a 2-1 ruling, held that the enactment of Prop 8 violated the Equal Protection Clause because the majority of the panel could discern no rational basis for California to rescind from same-sex couples the right to marry previously recognized by the State Supreme Court while at the same time continuing to provide same-sex couples with the state law rights and benefits of marriage. Withholding the word “marriage” would do nothing to advance any of the interests argued by Prop 8’s Proponents, wrote the appeals court majority, since it didn't affect the state's already established policy of extending all marital rights to same-sex couples.
The Ninth Circuit majority concluded that Prop 8 “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.”
The Prop 8 Proponents sought to have the case reconsidered by a larger panel of judges from the 9th Circuit –– a process termed “en banc review” –– but their request was denied in June.
Under Supreme Court rules, the Proponents’ petition will be granted if at least four of the nine justices vote in favor of review. The court is free to reframe the question posed by a petitioner if it grants review. The Proponents, looking to sidestep the manner in which the Ninth Circuit panel’s majority narrowed the case, are asking the high court to consider the question that Walker decided –– whether same-sex couples have a constitutional right to marry. The Ninth Circuit decision did not take up that broader issue, focusing instead on voters’ decision to undo a right to marriage already established.
The Supreme Court is most likely to take a case if a lower court ruling conflicts with other federal appellate decisions or its own past rulings or if it concludes that the case raises a question of national significance that urgently requires a definitive answer. The Proponents’ attorneys argue that this case meets those criteria.
Relying on an argument made by the Ninth Circuit panel’s dissenter –– as well as other Circuit judges who dissented from the decision to deny en banc review –– the Proponents asserted that the panel majority inappropriately applied the 1996 Supreme Court ruling in Romer v. Evans to the Prop 8 case.
In Romer, the high court struck down a Colorado amendment approved by voters that prohibited the state from providing any non-discrimination protection for gay people, finding it was an unprecedented violation of equal protection. The Ninth Circuit panel, noting that Prop 8 was a similar voter initiative depriving gay people of rights, reasoned that the result should be the same.
The panel held that it was appropriate to ask why the people of a state would withdraw rights from a specified group of citizens and what policy goals would be advanced. In Colorado, voters withdrew the right to use normal political means to seek anti-discrimination protection, which gay people there had earlier achieved in several cities. In the Prop 8 case, voters withdrew the right to marry, which same-sex couples had enjoyed in California for almost five months.
In neither case, said the appeals court panel, did the voter initiative under challenge advance any legitimate policy goal, since taking away or diminishing rights was not by itself a valid end. Both the Colorado and California initiatives, according to this analysis, failed to meet the minimal requirements of rationality imposed by the 14th Amendment’s Equal Protection Clause.
The Prop 8 Proponents, however, pointed to the Supreme Court’s emphasis in Romer on the sweeping nature of the Colorado amendment, while characterizing Prop 8 as narrowly focused on marriage. In fact, in light of the 2009 California Supreme Court ruling that despite Prop 8's constitutionality, same-sex couples still deserve all the rights and benefits of marriage, the Proponents argued that the 2008 ballot question essentially applies only to the word “marriage.”
Speaking to the national significance of the Prop 8 case, the Proponents warned that broadly applying Romer to the Prop 8 case threatens state marriage amendments, all enacted by popular vote, on the books in all the other states in the Ninth Circuit and more than 30 states across the country.
They also argued that the 9th Circuit ruling is inconsistent with the Supreme Court's dismissal, in 1972, of an appeal from a Minnesota high court decision against same-sex marriage on the ground that the case did not present “a substantial federal constitutional question.” They pointed out that the Eighth Circuit rejected a federal constitutional challenge to a similar state amendment that went even further than California's, banning both same-sex marriage and civil unions or domestic partnerships –– setting up a split among the nation’s Circuit Courts.
In addition to emphasizing the stakes that compel high court review, the Proponents also incorporated many of the substantive legal arguments they made before the trial court in 2010 about why it was rational for California voters to deny marriage to same-sex couples –– emphasizing the idea that the state uses the institution to encourage responsible reproductive sexual activity among heterosexuals.
On July 31, a press release from AFER emphasized the tensions in the group’s mission. Its stated goal is to get the US Supreme Court to strike down bans on same-sex marriage, but their attorneys’ first duty is to their clients. Preserving their appellate victory must take precedence.
David Boies, lead co-counsel together with Ted Olson, said, “Today's petition presents the justices with the chance to affirm our Constitution's central promises of liberty, equality, and human dignity.”
But Theodore Boutrous, Jr., another attorney who played a major role on behalf of the AFER plaintiffs, said, “Because two federal courts have already concluded that Proposition 8 is unconstitutional, gay and lesbian Californians should not have to wait any longer to marry the person they love. We therefore will oppose the petition for a writ of certiorari. However, we recognize that this case presents constitutional issues of national significance, and are ready to defend our victories before the Supreme Court.”
If the Court denies the Proponents’ petition, Judge Walker's ruling will go into effect and same-sex couples will be able to resume marrying in California. If the Court grants the petition, argument would probably be held sometime in the winter and the decision would come by June of next year.
