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grim amusements / 7 february 2012 / proposition 8 falls ... for the moment
...Assume you have a known four justice block of Roberts, Scalia, Thomas and Alito against broadening the decision to allow gay marriage throughout the land. The remaining justices are Kennedy, Kagan, Sotomayor, Ginsburg and Breyer. The decision is assumed to rest on what Kennedy decides to do. (I think it's probably safe to assume that Kagan, Ginsburg and Breyer would vote to strike down Prop. 8 on broader grounds and to allow gay marriage throughout the land. The few decisions that Sotomayor has had to make in this area prior to her Court experience lead one to think that she would probably support this decision, but also support the way in which it has been restricted so that it only applies to California.) It's difficult to imagine the author of Lawrence v. Texas voting to decide that marriage is so different in kind from everything else involved in that decision that he could sustain voting to refuse to allow marriage. It is beyond logically inconsistent, as Scalia went to some pain to point out in his furious dissent in that case.
Thing is, though, if the Court decides that they're not ready for this issue, but that they have no objection to striking down Prop. 8 in a way that's consistent both with Romer v. Evans and with Lawrence v. Texas, all they have to do is decline the case. Frankly, that really does seem the most likely result to me. [...] What I think is really going to be interesting, though, is what happens in Washington state after this. It seems likely that the Washington state legislature and governor are going to sign laws into existence that allow gays to marry in that state in the extremely near future. The Washington state branch of Project Marriage has already said that they plan to get the signatures to put the issue on the next ballot, and barring major disaster, they shouldn't have problems getting enough people to sign. And if it gets onto the ballot, it will pass, probably by a broader majority than Prop 8 passed....
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With Washington, however, I suspect the Project Marriage people will take a look at what happened here, then say, "Hmm. Perhaps we don't want to deal with the federal courts on this." So it will go from Washington's state level district courts, through their courts of appeal to the Washington State Supreme Court. Which will technically not be bound by the 9th Circuit Court decision on Prop 8, precisely because it was so narrowly tailored. So they will say what they will say -- unless there are issues with the certification of the proposition or whatever for the ballot, I would expect the electoral result of stripping away the right of marriage to be upheld -- and then a rather messier case could head for the US Supreme Court. Of course, it wouldn't arrive until well after the DOMA cases, so it might be rendered moot by then.
For what it's worth, I have a feeling that Kennedy is genuinely conflicted. I get the impression that his legal mind may be having a long, drawn-out trench warfare conducted against his upbringing and religious principles. What he thinks is right versus what he feels is right.
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"So the easiest thing to do will be to simply refuse it. I think that's exactly what Reinhardt was trying to do. He put in all kinds of great language that will apply to the general case, but then restricted its application to these facts. The more I think about, the more impressed I become -- this is legal/political writing on a par with Marbury v. Madison (and that's about as high praise as I can deliver). Just as Marshall s*** all over Jefferson, then said he couldn't help Marbury because that part of the Judiciary Act was unconstitutional, thus giving the appearance that the Court was acting with judicial restraint when in fact it was taking the enormously more powerful position that it had the power of judicial review over the constitutionality of statutes. Reinhardt did the same thing with he sweeping language eviscerating every argument the proponents made, but refraining from anything but the most narrow legal ground for the result. (Reinhardt, BTW, hired the EIC of my school's law review my third year as a clerk. He was out and HIV+, and still got the job, which says something about Reinhardt's world view -- this was over 20 years ago, and just two years after Bowers. I didn't know him well, but everyone who did said he was not only brilliant, but also without pretense or arrogance. He died not long after his clerkship ended, which is a great tragedy not simply at a personal level but for what he could have achieved in his career working for progressive causes.)
I'm not sure I'm following you on the Washington point. If same-sex marriage is enacted by statute, it's the same situation as in California. The PM folks will have to get a constitutional amendment on the ballot and passed, and then there'll be a federal court challenge to its constitutionality. I'm not seeing how the WA state courts get involved, but maybe I'm missing something.
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If I understand what the PM people in Washington are trying to do, it actually isn't a constitutional amendment; it's a referendum overrule of the legislature. Which is something that the Washington state courts can actually rule on; it's possible for the Washington state courts to say of the referendum, even after the vote, that it violates the Washington state constitution (or doesn't) entirely without reaching any federal issue. (If the marriage equality proponents are smart, they'll challenge the referendum in state court before it gets to a vote.) The difficulty with California was that once the California Supreme Court had decided that the referendum itself was valid, there was nothing else they could really say. (Well, apart from that standing issue, and I still think that was incorrectly decided. The precedents on that seem crystal clear. However, that's no longer part of the case -- although if the Supreme Court takes up the case, they may have one or two pithy remarks to make on the subject.)
If the PM people lose the vote (and they won't, unless it doesn't make it onto the ballot at all), they don't have to go through the federal district courts, and probably shouldn't. They can go through the Washington state courts, which, to the best of my knowledge, has been utterly silent on this issue so far. Going through the Washington state courts pretty much ensures that it doesn't make it to the US Supreme Court, and stays a state issue.
If the marriage equality supporters are the ones who lose at the ballot box (and they will), they will probably take it to federal court rather than state court, because now they have precedent on their side. Unless the panel chosen decides to overrule the 9th's own precedent -- how often does that happen? (seriously, I have no idea) -- the Washington referendum falls. Or unless the DOMA decisions have supervened and rendered the issue moot, one way or the other.
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One panel of a federal court of appeals is not supposed to overrule the decision of another panel of the same circuit. (You can and frequently do have splits between circuits.) The way it's supposed to work is the en banc court (which in the Ninth Circuit actually isn't all of them because there are too many judges) can only overrule a panel. What could happen is a panel "finding" some distinction to reach the opposite result, or following Reinhardt's opinion but saying this is a matter that should be taken up en banc. A majority of the active judges have to vote for rehearing en banc.
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I suspect, depending on how the law is actually worded, they'll go after it on the grounds that it is an infringement on freedom of religion. (And since there isn't a single one of these laws that's made it through without all sorts of exemptions for clergy, it's a ridiculous argument on its face, but they've been making it all over the place.) There will be a court clerk or someone who decides that they can't fulfill the obligations of their job if they're forced to act against their religious principles, and they'll try to overrule the law that way. Most of the state courts have been telling people to get stuffed when they make that argument, but they'll at least try.
EDIT: Going back through the comments chain, I realize that I got a couple things mixed up. So, just for clarity, the legal scenarios I envision are:
1) Most Likely: The good people of Washington state say, as have the people in every other state where this has come to a ballot, "EWWW! THEM HAMASEKSHULS ARE ICKY ICKY ICKY! NO MARRIAGE FOR YOU, ONLY FOR ME!" Gay people who wish to marry then take the law into federal court, because in the 9th Circuit, precedent is on their side.
2) Less Likely But Possible: The good people of Washington state say, in direct contrast to every other state, "Why should painful civil divorce be reserved only for straight people? Yeah, let everyone get married. They'll see...." Project Marriage, or some equivalent thereof, finds a county clerk or someone who would have had to perform marriages in direct contravention of their religious principles, refused to do so, and is rightfully disciplined or even fired for said refusal. While a federal principle is at issue -- freedom of religion -- federal precedent not being on their side, PM and Friends decide to go through state court, which they feel might be more amenable to their interests -- or at least not already on record taking the other side.
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