Ninth Circuit Declines to Re-Hear Prop 8

The US Ninth Circuit Court of Appeals has let stand a three-judge ruling that strikes down California’s Proposition 8.

In a June 5 decision, the circuit denied a bid to grant rehearing by a larger panel of circuit judges — sitting en banc — of a February three-judge panel decision affirming Chief District Judge Vaughan Walker's 2010 ruling that Proposition 8 is an unconstitutional violation of the Equal Protection Clause.

The court, however, stayed it ruling for 90 days to give the Official Proponents of Prop 8 — who are defending the 2008 voter initiative in the absence of the California governor or attorney general doing so — the chance to appeal to the Supreme Court.

The high court would not take up the question of an appeal until its new term begins in October, and if they take the case, a decision could be at least a year off. Should they decline the case, however, same-sex couples could marry again in California.

“This is a great step forward toward the day when everyone will be able to marry the person they love,” said David Boies, one of the attorneys hired by the American Foundation for Equal Rights (AFER) to represent two California same-sex couples who wish to marry.

Boies and his colleagues, Ted Olson, against whom he famously battled in the Bush v. Gore case that decided the 2000 election, and Ted Boutrous, spoke to reporters after the circuit decision was issued, in a call coordinated by Chad Griffin, AFER’s founder and the new president of the Human Rights Campaign.

Judge Walker's decision in August 2010 held that same-sex couples have a right to marry, based on both the Due Process and Equal Protection Clauses of the 14th Amendment. In a lengthy opinion based on a very full trial record, Walker made detailed findings of fact that refuted all the justifications put forward for denying same-sex couples the right to marry.

While Walker found that the denial of a fundamental right or the argument that sexual orientation should be treated as a “suspect” classification, like race, might subject the marriage ban to a heightened or strict level of judicial scrutiny — requiring a compelling justification — he concluded that Prop 8 could not even survive the least demanding type of review. AFER, he found, demonstrated that there was no rational basis for barring gay and lesbian couples from marrying. Existing Ninth Circuit

precedent has held that sexual orientation discrimination claims should be subjected to such rational-basis review.

The Prop 8 Proponents succeeded in getting Walker’s ruling stayed, but the case hit a speed bump when the Ninth Circuit asked the California Supreme Court for an advisory opinion about whether the amendment’s promoters had the right to intervene after top elected officials in California declined to defend the referendum in federal court. After the state high court responded affirmatively, the three-judge panel then ruled on the merits.

That panel's February 7 decision affirmed Walker's conclusion that Prop 8’s enactment was unconstitutional, but employed different — and narrower — reasoning. Unlike Walker, the Ninth Circuit did not rule that same-sex couples have a right to marry as a matter of federal constitutional law. Refocusing the case, the court instead concluded the state had violated the 14th Amendment by voting to rescind the right to marry after it had been granted.

The court likened this case to Romer v. Evans, the US Supreme Court's 1996 decision that struck down Colorado’s Amendment 2, a referendum rescinding the right of gay people there to seek any nondiscrimination protections. The Ninth Circuit concluded, as had the Supreme Court in Romer, that there was no rational, non-discriminatory reason for doing so.

In narrowing the case's scope in this way — by making its decision turn heavily on Walker's factual findings about the nature of the campaign to pass Prop 8 — the three-judge panel made it less likely that the Supreme Court would be interested in hearing the case.

Boies and Olson offered somewhat different takes on the prospects for the high court stepping into the Prop 8 case.

“We suspect they will take the case,” Olson said.

Noting the May 31 ruling from a First Circuit appeals panel (see page 16) affirming a decision striking down the Defense of Marriage Act (DOMA), Boies offered a more cautious response, saying, “I think it is probably likely that the court will take one or both of the cases.” He added, “I don’t have a view of whether they will likely take this case.”

He said if the Supreme Court was predisposed to view the Prop 8 case on the narrower grounds laid out by the appeals panel in February, “that might be a factor increasing the chances they would not take the case.”

It is very likely the high court will be considering the DOMA case in its next term, since the Bipartisan Legal Advisory Group (BLAG) of the US House of Representatives, a group controlled by Speaker John Boehner that began defending the 1996 law when the Justice Department decided last year it would no longer do so, is expected to file an appeal of the May 31 decision. That ruling held that DOMA’s Section 3, which bars federal recognition of valid same-sex marriages, is unconstitutional under the Fifth Amendment's equal protection requirement. The First Circuit found no justification for the federal government distinguishing between same-sex and different-sex marriages that are valid under state law, but did not rule on the underlying question about a constitutional right to marry.

The Supreme Court is expected to grant review in the DOMA case, since otherwise the federal government would be in the untenable position of recognizing same-sex marriages in the First Circuit — comprised of Maine, New Hampshire, Massachusetts, Rhode Island, and Puerto Rico — but nowhere else.

It seems less likely the Supreme Court would be interested in reviewing the Prop 8 case, given its narrower scope and application to just one state. If the Court did grant review, it would be free to reframe the question more broadly to focus on whether same-sex couples have a right to marry, or it could practice judicial restraint and limit itself to determining whether the Ninth Circuit panel correctly applied the reasoning of Romer v. Evans to find that Prop 8's rescission of rights was invalid.

Olson, after saying AFER will oppose the Proponents’ effort to appeal the Ninth Circuit ruling — since its clients would enjoy an “absolute victory” if it stands — said he and the other attorneys “will not avoid a full ventilation of this issue.”

Their arguments, he said, will address the broad issue of denying gay couples the fundamental right to marry and the narrower question of California voters choosing to take away a right earlier judged fundamental under the State Constitution.

Referring to a potential Supreme Court ruling by June 2013, Olson boldly predicted, “We believe that will vindicate the rights of gay and lesbian people to marriage equality in the United States.” — Additional reporting by Paul Schindler

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