The legal struggle over same-sex marriage in California presents important questions of constitutional law, democratic process, and federal court procedure. More than three years after California voters amended the state constitution to overturn a court ruling permitting same-sex marriage, the legal status of that referendum, known as Proposition 8, remains uncertain.

The present stage for this drama is the U.S. Court of Appeals for the Ninth Circuit, but this is much like a pre-Broadway theater tryout with a Supreme Court run waiting in the wings.

The issues in the case, Perry v. Brown, are of interest to students in constitutional law, family law, seminars on equal protection and sexual orientation, federal courts, and perhaps legal ethics.

The underlying controversy, of course, is whether the right to marry includes same-sex persons or may instead be limited to opposite-sex couples. The heart of the current appeal, however, is a somewhat narrower question:  whether voters may single out same-sex couples and take away their right to marry after state courts have recognized it as protected.

Some brief history might help explain the dispute. In May 2008, the California Supreme Court ruled that it violated the state constitution’s equality principles to have the legal relationships of same-sex couples treated as domestic partnerships and the relationships of opposite-sex couples treated as marriages. The state constitution, the court said, required equal treatment, which would mean treating both kinds of relationships as marriage. Same-sex marriage opponents then succeeded in having a constitutional amendment, Proposition 8, approved on the November 2008 ballot to restrict marriage to opposite-sex couples.

Proposition 8 opponents then went to federal court, challenging the amendment’s constitutionality.  In August 2010, a federal district court ruled that Proposition 8 violated the Fourteenth Amendment’s Due Process Clause because it interfered with the fundamental right to marry for same-sex couples; moreover, the court held, the amendment also violated the Fourteenth Amendment’s Equal Protection Clause because there was no rational basis to discriminate against same-sex couples.

As the case proceeded, it took a fascinating procedural detour. California’s top elected officials refused to defend Proposition 8 because they considered it unconstitutional. That created a significant standing problem – whether private citizens may defend a California law when the state declines to do so. Since the question was one of state law, the Ninth Circuit took advantage of a process available in some states and referred the question of whether there was standing to the California Supreme Court. The idea that federal courts do not issue advisory opinions is one of the oldest established principles in the federal judicial system, but some state supreme courts are authorized by state constitutions or state law to issue advisory opinions. The California Supreme Court in November 2011 advised that the proponents of Proposition 8 should be allowed to defend the referendum, and the Ninth Circuit then accepted that advice.

Taking a narrower approach than the federal district court, a three-judge panel of the Ninth Circuit ruled last month that Proposition 8 was unconstitutional because it singled out same-sex couples and took away legal recognition of their marriages that had been previously granted by the state. This discriminatory treatment of same-sex couples violated the Fourteenth Amendment guarantee of “equal protection of the laws,” the court ruled.  “Proposition 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,” it explained.

The defenders of Proposition 8 have now asked for rehearing “en banc” in the Ninth Circuit, essentially a request to have the case reconsidered by a larger panel of judges. In most circuits, an en banc hearing involves the entire court of active judges. But the Ninth Circuit is so large – with twenty-five active judges – that it instead has adopted a procedure of sitting en banc in eleven-judge panels. For that to happen as the next step, a majority of the twenty-five judges must vote to rehear the case; if they do, then the opinion of the three-judge panel is nullified and the legal resolution awaits the eleven-judge decision.

En banc review can be a highly politically charged process in the Ninth Circuit, which has sixteen judges who were appointed by Democratic presidents and nine appointed by Republicans. And in this case in particular, the author of the three-judge panel opinion was Judge Stephen Reinhardt, who was appointed in 1980 by President Jimmy Carter.  Judge Reinhardt is widely regarded as one of the most liberal judges in the nation and is a frequent target for en banc review among his colleagues and even sometimes for reversal by the Supreme Court. The other judges may want to have their own say about what the law is within the Ninth Circuit, rather than leaving the matter to Judge Reinhardt’s opinion.  Or they may want to lay out the arguments in a way they think will persuade the Supreme Court one way or the other. A possible contrary view, however, is that Supreme Court review is inevitable, and so there is no reason to delay it with en banc review, which would essentially be just a stop at a way station on the way to the Court.

The focus of the request for en banc review is the Ninth Circuit’s reliance on a controversial 1996 Supreme Court ruling, Romer v. Evans. In Romer, Colorado voters passed an amendment to their state constitution prohibiting any anti-discrimination measures for gays and lesbians, overriding the adoption of anti-bias ordinances in cities like Aspen and Boulder. The Supreme Court ruled that the Colorado amendment violated the Equal Protection Clause of the Fourteenth Amendment. In an opinion by Justice Anthony Kennedy, the Court said that the amendment served no purpose other than to make gays and lesbians disfavored under Colorado law.  “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense,” Justice Kennedy wrote.

The tricky part of Romer, as law students discover in constitutional law classes, is what standard of equal protection analysis the Court uses. When laws discriminate on the basis of race or gender or interfere with a fundamental right, the Court has examined such actions more rigorously, using some form of heightened scrutiny to evaluate the purposes and effects of a law. But discrimination against gays and lesbians is generally subjected to the most deferential standard of review – requiring only that a law serve a rational purpose – under which the government usually wins. But in Romer, the Court could find no rational justification for the law.

The petition for rehearing en banc argues that Romer is not the correct precedent to use because the voters were not discriminating against gays and lesbians. “Californians draw the line at redefining marriage to include same-sex couples, not because they disapprove of gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society’s legitimate interests,” the petition argues.

But those opposing rehearing and defending the Ninth Circuit panel’s ruling counter that Romer is exactly on point, noting that the denial of access to the marital relationship for same-sex couples “suggests it was motivated by animus against gay men and lesbians rather than some legitimate governmental aim.”

The petition for rehearing also raises an ethical issue. The 2010 district court decision holding that Proposition 8 was unconstitutional was issued by Judge Vaughn Walker. The following year, after leaving the federal bench, Judge Walker disclosed that he had been in a ten-year gay relationship. The petition suggests that Judge Walker should have recused himself from the case because he may one day want to marry his partner and therefore would benefit from his own ruling.  Thus, the petition argues, Judge Walker’s ruling should be nullified entirely and sent to a new federal district judge to start over. The Ninth Circuit panel rejected the suggestion that Judge Walker’s sexual orientation meant he had to recuse himself.

Numerous issues hang over the case while the Ninth Circuit tries to decide the next step. First, the case will almost certainly be appealed to the Supreme Court by whichever side is finally on the losing end in the Ninth Circuit. How quickly the issue will get to the Supreme Court is anyone’s guess, but it certainly will not be this Term and – if the Ninth Circuit does decide to rehear the case – it’s possible that it may not reach the Supreme Court next Term either.

Also hanging over the dispute in the underlying bigger picture is the question whether same-sex couples have the fundamental right to marry. In the odd current posture of the case, the Supreme Court might face an appeal that does not directly present that underlying issue but instead only confronts the question whether voters can take same-sex marriage away once courts have said the state constitution protects it as a right.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students: The law and process of California’s Proposition 8 (sponsored by Bloomberg Law), SCOTUSblog (Mar. 13, 2012, 9:58 AM),