Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. 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 opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.
12 replies
  1. MadDog says:

    In short, the 9th followed the path of least resistance with a states rights decision rather than venture into US Constitutional territory.

    Regardless of their motives, as you say, the case will undoubtedly now be pushed upward to the Supremes anyway, so in my mind, the 9th chose timidity over valor.

  2. MadDog says:

    @Phil Perspective: You got that right! This, in spite of the fact that Chief Justice Roberts proclaims that the federal judiciary is supposed to call the “balls and strikes”.

    Can you imagine what this country would be like if the federal courts, including the Supreme Court, had decided that mixed marriages were a states rights issue or that equal rights for African Americans was a states rights issue?

    It seems rare these days that the lower federal courts deign to deal with Constitutional issues. The word seems to have gone out that only the Supremes are allowed to reign there. Talk about emasculation. At least with regard to male judges.

  3. bmaz says:

    @MadDog: @Phil Perspective:

    Yeah, but damn. This case was soooooo perfectly set up by Vaughn Walker – in ways that are unlikely to ever be possible again because the h8ters will not allow for an evidentiary trial after their fiasco in Perry – and 90% of that is in the shitter because of timidity by the oldest ballsiest lion on the 9th Circuit. This was his final legacy case I think, and he was terrified of deciding it the way he should have and taking a chance SCOTUS would bounce him. Problem is, in short arming the sucker, he left the case intact, but in a completely asinine posture. And he totally fucked Vaughn Walker.

  4. lysias says:

    With California added to the states allowing same-sex marriage, it will just be a matter of time before public opinion in this country demands a Loving-type decision from SCOTUS. Loving came a little over a decade after the Supreme Court had declined to accept a different miscegenation case.

  5. Teddy Partridge says:

    Nice to see war criminal and torture memo author Jay Bybee cite recent convert to States’ Rights Barack Obama in the bitter dissent:

    The court announces only the results of such votes on requests for rehearings and not number of votes on each side. The only public dissent came from three conservatives who noted that President Obama, in his recent endorsement of the right of same-sex couples to marry, had said each state should make its own decision.

    “Today our court has silenced any such respectful conversation,” said Judge Diarmuid O’Scannlain, joined by Judges Jay Bybee and Carlos Bea. They said the court panel had wrongly invoked antigay bias as “the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

    One has to wonder what creeping relevance States’ Rights will have in our jurisprudence, now that “looking forward, not backward” makes for such unusual allies in unrelated argument.

  6. Arbusto says:

    Seems as though today, the three, inextricably intertwined, branches of government view the Constitution as guidelines and not the basis our various freedoms.

  7. Teddy Partridge says:

    Dissenters cite Obama:

    Judge O’Scannlain, joined by Judges Bybee and Bea, dissenting from denial of rehearing en banc, in a decision beginning: “A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”


  8. bmaz says:

    @Teddy Partridge: Hey don’t look at me, the second Obama made his big splash, I tried warn the chattering classes out there that he had NOT really evolved for shit if you dissect what he said.

  9. Teddy Partridge says:

    @bmaz: Obama’s evolved at the breakfast table, and enough to make his daughters’ sleepovers less awkward when at two-gay-dads’ households, but — No, a states’ rights Democrat is an oxymoron in the 21st century.

    As with everything else, a GOP holding this “position” that hearkens back to massive resistance in the fifties and sixties would be pounded by progressives, who are instead letting Obama turn the Democratic Party into Nelson Rockefeller’s and John Lindsay’s GOP.

  10. thatvisionthing says:

    Thought of you bmaz and your illustration yesterday when I was scrolling across the Manif de Bonhommes banner of Montreal pot bangers on Naked Capitalism: — scroll over till the button is about an inch from the right and there’s the Statue of Liberty holding her flaming pot high followed by Lady Justice banging on her scales. So glad to see them there!

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