11 February 2012

Prop 8 Appellate Summary for Laypersons

I'm posting this a little earlier than usual this week, though its about three days later than I had hoped to post.  Back in August of 2010, I posted a layperson's summary of the district court opinion in Perry v. Schwarzenegger (the "Prop 8 case").  I am going to attempt to do the same thing for the Ninth Circuit's recently released 2-1 decision upholding Judge Walker's decision.  I will leave the analysis and prognostication to other, more able hands, and try to describe the decision for those without the benefit (?) of legal training.

An appellate judicial decision in the United States federal court system is somewhat of a different beast than a district court decision.  The court is not called upon to re-evaluate the factual evidence that was presented at the trial, so there are no new findings of fact.  The evidence presented at trial is taken as given unless the appellate court finds "clear error" in how facts were presented, accepted or evaluated by the court and the jury  The purpose of an appeal is to determine whether the trial judge (here Judge Walker) applied the law to the facts correctly.  Here the Ninth Circuit applied a de novo standard to the conclusions of law, meaning they looked at them with no assumptions about whether the district court judge was right or wrong.

To begin with, the Ninth Circuit (or rather the two judges in the majority) approached the question presented somewhat differently than Judge Walker had at the original trial.  Rather than asking whether gays and lesbians had a fundamental right to marry, it asked whether Prop 8's removal of that right, which had previously been granted by the California Supreme Court, was unconstitutional.  This is a subtle and technical, but very important distinction, particularly in setting the case up for possible Supreme Court review.  The Ninth Circuit ultimately decided that it was, stating "Proposition 8 serves no purpose, and has no effect, other than to lessen the status of 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 Ninth Circuit first disposed of the issue of "standing," which asks whether the parties in question have the right to bring or defend a lawsuit on a particular issue.  The ideal defendants in this lawsuit would have been the State of California or its officials, since those were the parties who could act to reverse the effects of Proposition 8.  However, all of those defendants declined to participate; therefore, other defendants, including those who originally proposed and sponsored Prop 8, stepped forward.  The Ninth Circuit determined that under California law, the state has allowed the official sponsors of a ballot initiative to represent the State and defend its interest in a lawsuit challenging the initiative.  Therefore, the defendants had standing to proceed.

As background, accepting the facts as presented and found by the district court, the Ninth Circuit panel noted that under California law, "registered domestic partnerships" had (prior to Prop 8) and have (after Prop 8) the same bundle of rights as marriage, but without the name.  In 2008, the California Supreme Court decided that the state statutes prohibiting marriage between same-sex couples was unconstitutional under the privacy and due process provisions of the state Constitution.  The intent of Proposition 8, passed that same year, was to amend the state Constitution to reassert the prohibition.  The effect was, in the words of the California Supreme Court, cited in the Ninth Circuit's opinion, that "[s]ame-sex couples retain all of the fundamental substantive components encompassed within the constitutional rights of privacy and due process, with the sole (albeit significant) exception of the right to equal access to the designation 'marriage'."  The district court had determined that Prop 8 was unconstitutional because no "compelling state interest" justified violating same-sex couples' fundamental right to marry, and there was no "rational basis" for such discrimination under the Equal Protection Clause of the U.S. Constitution.  [Author's Note: For an explanation of some of these legal terms and their significance, please see the former summary linked to above.]

In addition to those bases that were part of the district court opinion, at the appellate level, one of the plaintiffs (the City of San Francisco) offered a new rationale for Prop 8's unconstitutionality: that Prop 8 had singled out same-sex couples by depriving them of a right they previously possessed.  The Ninth Circuit proceeded to analyze this rationale, since it was the "narrowest," meaning that accepting it would cause the smallest change in the whole scope of the law.  This means they set aside the questions of whether same-sex couple have a right to marry, and ask simply whether, having already been granted the right by California's highest court, the voters could take it away.  The only thing taken away was the name "marriage," since all of the other related rights were available under the title "registered domestic partnership."  Nevertheless, the Ninth Circuit recognized that this name and title is significant and has a unique meaning ("A rose by any other name...")  Because of this uniqueness, taking away that title strips value and dignity away from same-sex couples.

The Ninth Circuit analogized this case to the Romer case from Colorado.  In Romer, the state constitution had been amended to forbid the state government and other political entities within the state from giving gays and lesbians any protection against discrimination on the basis of sexual orientation.  The United States Supreme Court determined that the only rationale for such a law was animosity against a class of persons and such a rationale was not legitimate.  The Ninth Circuit determined that, like Romer, Prop 8 created a special disability for a particular class and constitutionalized that disfavored status.  It also stated that it was more suspicious since the discrimination was so precise (being limited to marriage) rather than the blanket effects that were present in the Romer case.

The Ninth Circuit proceeded to apply "rational basis" scrutiny, which is the lowest and weakest level of scrutiny under the Constitution.  Under that standard, the classification must only bear "some rational relation to some legitimate end."  Therefore, the relevant question becomes whether the voters of California could have legitimate and rational reasons for making the deliberate decision to remove the title of marriage from the relationships of gays and lesbians.  The Ninth Circuit then looked at four possible reasons: (1) California's interest in childrearing and procreation, (2) proceeding with caution, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools.  The Ninth Circuit bolstered the typical weakness of the rational basis standard by insisting that the rationale must have some basis in reality, and not be pure fantasy.  According to the judges in the majority, all four reasons fail on that count.  First, Prop 8 did not affect that ability of same-sex couples to become parents or raise children in California.  California family law places the highest value on the social relationship of parents and children, not their biological relationship.  Thus, the rationale of restricting marriage to those couples who can biologically procreate together, in order to strengthen and honor those bonds, makes no sense.  [Here the Ninth Circuit delivers the best punch line of the entire opinion-- "we believe that the People of California 'could not reasonably' have 'conceived' such an argument 'to be true.'...It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman."  So to all those people who actually believe that very thing, the Ninth Circuit says you're crazy]

The decision just as easily dismisses with the other three proffered reasons- first, that Prop 8 was designed so that changes in traditional marriage structures could proceed cautiously.  The court found this unpersuasive since Prop 8 took effect only after 18,000 couples had been married and had no "sunset provision" or date of expiration or re-evaluation.  It was not intended to slow change towards same-sex marriage, it was intended to foreclose it forever.  Thus, this rationale could not be rationally related to Prop 8's purpose or effect.  Next, the court found that religious liberty could not have been threatened because no religion had been or could be required to perform a same-sex marriage and Prop 8 did nothing to change that.  Finally, since nothing about same-sex marriage was required to be taught in public schools either before or after Prop 8, this rationale was likewise inapplicable.  The only prohibition, which existed prior to Prop 8, was against any instruction that discriminated on the basis of sexual orientation.  Prop 8 did nothing to change that prohibition.

After disposing of the previous four reasons, the Ninth Circuit cast about for some other plausible rationale.  Tradition was considered, but ultimately discarded, as tradition alone is insufficient to strip a minority of its rights.  The only rationale that remained was the one found in Romer-- animosity towards gays and lesbians. The Ninth Circuit found that this was consistent with the evidence of the environment in which Prop 8 was passed and with the stated motivations and thoughts of its proponents.  While "'private biases may be outside the reach of the law,...the law cannot, directly or indirect, give them effect.'"  Moral disapproval, like the traditions on which it is built, is not alone a sufficient justification for removing rights from a minority.

Having found no rational or legitimate justification for the California voters' decision, and suggestions of at least one impermissible justification, the Ninth Circuit struck down Prop 8's removal of the right of gays and lesbians to use the title "marriage" to describe their legally recognized relationships.

There was a single partial dissent, though the dissent was on most of the substantive issues with the exception of standing.  This has already run long, so I will not go into summarizing it, but will merely point you to Dahlia Lithwick's analysis at Slate, which seems to represent the consensus opinion that this dissent is pretty weak and does not give any higher court much to build on.

I hope that this has been clear, particularly for the lay persons.  Feel free to ask any questions in the comments.
The Nightstand (February 10, 2012)

Capitalism versus Democracy (Eric Ruder, Socialist Worker)

Understanding the Mormon Faith (Sally Steenland, Center for American Progress)- Another great interview with Joanna Brooks, this time on the website of one of the premier left-leaning think tanks.  See also an extended piece on Brooks on the CNN Faith website.

The privatization trap (Mike Konczal, Salon)

Why Mitt Romney Doesn't Have a Prayer (Theo Anderson, In These Times)- This was a somewhat original take on Mitt Romney's perceived faith problem.  Has less to do with evangelical distrust of Mormons, or the perceived oddness of Mormon doctrines, but on a lack of authenticity, openness, and tension with key institutions from the candidate himself.

Should it take decades to build a subway? (Will Doig, Salon)- I'm a big booster of public transit and wish that I lived in a place that could do a better job than a tiny light rail that goes from nowhere to nowhere.  This article explains part of why that probably won't happen.

David Graeber's Debt: My First 5,000 Words (Aaron Bady, The New Inquiry)- I wrote a short blurb about this book last week, and this is the best review I have read of it so far.

We are the Media, and so are you (Jimmy Wales, Kat Walsh, WaPo op-ed)


  1. So how does this tee things up for the Supreme Court? Does the SC get to go back and review the entire case from start to finish, or are they limited to starting with the very weak defense of prop 8 that was mounted in Judge Walker's court? (hope hope hope)

  2. Mark:
    Technically speaking, the Supreme Court is just another appellate court and they are limited to the facts on the trial record. The Supreme Court is generally limited to reviewing only what the appellate court did (i.e. their interpretation of the law) and the particular theories that they examined. However, to be totally frank, the Supreme Court does whatever it wants.

  3. Those darn activist judges.....