Feb 08 2012

Why the Supremes are unlikely to overturn the Prop 8 ruling

Guest post by Rieux.

There is a very real chance that this decision has cemented marriage equality in California permanently. Yes, it’s possible that five flaming assholes on the Supreme Court will jump in and take it all away—but to my eyes that outcome doesn’t look nearly as likely as previous commenters think it is.

To explain, in inordinately long-winded fashion:

Court decisions striking down homophobic marriage laws always make for terrific reading. Goodridge in Massachusetts, Varnum in Iowa, the Marriage Cases in California state court, and the federal district-court decision in this case, Perry, are all inspiring examples of jurisprudence—I find it hard to avoid tearing up while reading them. This is what law, legal rhetoric, and legal institutions are supposed to do for human beings; decisions like those make me feel that my profession is an honorable and valuable one.

The current Ninth Circuit opinion (I just finished reading the majority; I’ll get around to the dissent some other time, bah) evokes some of the above emotions, but not really the tear-jerking ones: this is an honorable decision as well, but more than that it’s a careful, even crafty decision.

The majority decision is by Judge Stephen R. Reinhardt, who happens to be the same judge who found in favor of Michael Newdow and held that public-school teachers and staff can’t lead students in a Pledge of Allegiance that includes “Under God.” Reinhardt wrote the initial (2002) decision in Newdow’s favor, and then after the Supreme Court overturned that decision in flagrantly absurd and cowardly fashion (fabricating a new rule of law out of thin air to decide that Newdow didn’t have standing to bring the suit in the first place), he wrote a scorching 123-page dissent when Newdow’s subsequent attempt to bring the case with new plaintiffs was rejected by the other two judges on the Ninth Circuit panel. You’ve got to imagine that Reinhardt has a hell of a bone to pick with the Supremes, and it really looks to me like he’s structured this decision (with, it appears, an assist from the attorneys for the intervenor-plaintiff City and County of San Francisco) in such a way as to make it difficult for Roberts and company to take the case up in the first place.

As a quick primer on how these processes work: Ordinary cases in U.S. federal court are filed in one of the eighty-nine U.S. district courts; the Perry case, here, was filed in the U.S. District Court for the Northern District of California. Once a district court makes a final judgment on a case before it, the losing party has the right to appeal to the applicable Circuit Court of Appeals. Appeals from all of California’s district courts (as well as eight other western states’ and two Pacific U.S. territories’) go to the Ninth Circuit Court of Appeals—which, to my understanding, is the biggest and busiest of the twelve federal circuit courts. There are numerous judges in each circuit court, but each appeal from lower courts is heard by a panel of only three judges, who then issue a decision. Tuesday’s outcome in Perry was a 2-1 majority decision, with Reinhardt and Judge Michael Daly Hawkins in the majority and Judge N. Randy Smith (“N. Randy”?) in dissent.

After that, the next step for the losing party is to request a hearing in front of “the en banc court,” which means in front of all of the judges of the circuit court. In the Ninth Circuit, that’s currently forty-four justices. For logistical reasons that might be self-evident, such a request is seldom granted. It’s a common request, though, because it’s a necessary prerequisite to the next step, which is….

Petitioning the U.S. Supreme Court for a writ of certiorari (“cert” for short), which is to say asking the Court to take up the case and review the circuit court’s decision, whether it was en banc or the far more common three-judge panel*.

Anyway. The Supremes get a huge number of cert petitions every year, and they accept only a small fraction of them. A very large proportion of the petitions they accept, moreover, stem from issues on which one circuit court of appeals has ruled one way and another circuit court has ruled in a different way (creating what’s called a “circuit split”); in that situation, the notion is that the nation needs the Court to step in and resolve the discrepancy. A circuit split isn’t an absolutely mandatory condition for the Court to take up a case, but it’s the most common and uncontroversial one.

And that’s where Reinhardt’s craftiness in putting together his decision comes in: unlike the courts in Goodridge (Massachusetts), Varnum (Iowa), and even the district court in this litigation (N.D. Cal.), the Ninth Circuit majority opinion in this case doesn’t even directly hold that denying marriage equality to gay and lesbian couples is, in and of itself, unconstitutional. It seems likely that Reinhardt and Hawkins would have been willing, and maybe even happy, to issue such a ruling—but if they had done so, that would immediately create a circuit split, because one other federal circuit (mine, ugh) has already held that bans on same-sex marriage don’t violate the U.S. Constitution. See Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006).

Instead, the Ninth Circuit majority opinion only holds that California’s decision (via ballot-proposition constitutional amendment) to take away a marriage right that had previously existed violates the Constitution. That’s a notably narrower ground than the clean’n’simple “Bans on gay marriage violate equal protection” holding that we supporters of marriage equality would like to see, but it makes the entire decision far less relevant to any jurisdiction outside of California—and therefore far less worthy of a place on the Supreme Court’s docket.

That narrower basis for the panel majority’s decision also allows Reinhardt to draw a strong parallel between this case and (what I think is) the nicest American gay-rights decision in the pre-Goodridge era: the U.S. Supreme Court’s decision in Romer v. Evans, 517 U.S. 620 (1996). In Romer, the state of Colorado had passed, by ballot initiative, a state constitutional amendment providing that state and local governments were barred from recognizing gays and lesbians as a protected class in any anti-discrimination law. The Romer Court struck this “Amendment 2″ down, holding that “[i]t is not within our constitutional tradition to enact laws of this sort”—laws that “singl[e] out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The Court concluded that the Colorado provision violated the Equal Protection clause in the Fourteenth Amendment, because it “classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else.”

The Ninth Circuit decision published Tuesday holds that Prop 8 is just Romer all over again:

The relevant inquiry in Romer was not whether the state of the law after Amendment 2 was constitutional; there was no doubt that the Fourteenth Amendment did not require antidiscrimation provisions to be afforded to gays and lesbians. The question, instead, was whether the change in the law that Amendment 2 effected could be justified by some legitimate purpose.

The Supreme Court’s answer was “no”—there was no legitimate reason to take away broad legal protections from gays and lesbians alone, and to inscribe that deprivation of equality into the state constitution, once those protections had already been provided. We therefore need not decide whether a state may decline to provide the right to marry to same-sex couples. To determine the validity of Proposition 8, we must consider only whether the change in the law that it effected—eliminating by constitutional amendment the right of same-sex couples to have the official designation and status of ‘marriage’ bestowed upon their relationships, while maintaining that right for opposite-sex couples—was justified by a legitimate reason.


This seems to me downright sneaky: the Ninth Circuit panel majority is openly avoiding the broader issue of the constitutionality of bans on gay marriage, which is relevant all across the country, in favor of focusing on a peculiar set of facts that currently only applies, and probably only will ever apply, in California. “Possibly you can refuse to give gay couples the right to marry, but once you’ve given it to them you can’t (constitutionally) take it away again.”

There can’t possibly be a circuit split on that issue, because it can’t currently happen in any other circuit. (Maine, which is in the First Circuit, came close in 2009… but gay couples there never actually had a chance to get married before a homophobic ballot initiative took the right away.)

The upshot is that it’s going to be substantially more difficult for the Supremes to reach down into the Ninth Circuit, grab this case, and overturn it than it would have been had Reinhardt not written the decision this way. It’s not impossible to imagine that Roberts, Scalia, Thomas, and Alito would vote to grant cert here, but it’s a little hard to understand how they could argue that the panel’s actual ruling—regarding taking away a marriage right that had already been granted—is some kind of (a) pressing legal issue for the whole nation or (b) drastic departure from the American jurisprudence that the Supremes supervise.

Presuming that they do take it up, then, should we be pessimistic? Well, regarding those four guys’ votes, sure. Scalia and Thomas, especially, have made their drooling homophobia (not to mention callous disregard for Court precedent, and indeed for common decency, when it doesn’t suit their prejudices or politics—see Bush v. Gore, 531 U.S. 98 (2000)) more than clear. But it’s hard to imagine Ginsburg, Breyer, Sotomayor, or Kagan overturning the Ninth Circuit decision, given how narrowly Reinhardt drew it.

So we get to the kicker, the swing vote that everyone has been wondering about for years (I’m still wondering whether Sili was making a cute joke about this @3): Anthony Kennedy. Would Kennedy vote to uphold this decision? Conceivably not, but guess who wrote the Court’s Romer opinion in 1996? Guess who composed that whole argument about the evils of “classif[ying] homosexuals not to further a proper legislative end but to make them unequal to everyone else?” Anthony Kennedy did!

And so Reinhardt’s crafting doesn’t just limit the chances of a successful cert petition—it’s also aimed directly at appealing to the swing vote that would determine whether the Ninth Circuit decision survives. C’mon, guys, we’ve gotta like those chances. (And, not surprisingly, the right wing is already virtually burning Reinhardt in effigy again. Too bad he’s 80 years old; he’s doing an awful lot of good for the country.)

Even in the worst case scenario, the Ninth Circuit decision being overturned means that we’re back where we started in November 2008: Prop 8 back in force, and GLBs in California being shit on by the law again. That’s certainly an ugly possibility, but given the potential upside (and the fact that the worst-case scenario is awfully similar to the status quo), the outlook looks awfully sunny on balance to me.

So cheer up—this decision is great news!

*See comment 2 for amendments.



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  1. 1

    Off Topic, but a head’s up:

    In an interview this week with Connecticut Magazine, Cardinal Edward Egan, withdrew his 2002 apology for the Church’s handling of the sex-abuse scandal, which was once read in all New York parishes.

    A decade after that letter, the former archbishop of New York, and former bishop of Bridgeport, now describes the handling of the priest-abuse crisis under his watch as “incredibly good.” He said of the letter, “I never should have said that,” and added, “I don’t think we did anything wrong.”

    “I never had one of these sex abuse cases.” he said, before adding pompously, “If you have another bishop in the United States who has the record I have, I’d be happy to know who he is.” He also claimed that the Church had no obligation to report abuse to the civil authorities.

    These are lies, strutting around with pride.

    The Church is required to report abuse, according to laws on the books since the 1970s.


    And they lecture us on morals… They’re certainly in a twitter over Prop 8…

  2. 2

    Very flattering to be guest-posted this way; thanks, Ophelia.

    I think I have to correct myself on two points from this paragraph:

    After [a circuit-court panel decision], the next step for the losing party is to request a hearing in front of “the en banc court,” which means in front of all of the judges of the circuit court. In the Ninth Circuit, that’s currently forty-four justices. For logistical reasons that might be self-evident, such a request is seldom granted. It’s a common request, though, because it’s a necessary prerequisite to the next step, which is [petitioning the Supreme Court for a writ of certiorari].

    Since I wrote that, I’ve learned that even en banc rehearings in the Ninth Circuit normally involve only eleven judges, rather than all of them. (Not to mention that several of the judges who make up the forty-four-strong Ninth Circuit roster I mentioned are senior judges, sort of judges emeritus, and judges in that category almost never hear en banc cases anyway, in any circuit.) An en banc hearing is still a rare proceeding, but it’s not as logistically crazy in the Ninth Circuit as I thought.

    More embarrassing is something that came up in an interview I saw last night, shortly after I posted the above comment: as Slate senior editor Dahlia Lithwick told Rachel Maddow yesterday during their discussion of the Ninth Circuit decision, a petition for en banc rehearing is not a prerequisite for asking the Supreme Court for a writ of cert. In fact, the anti-gay intervenor-defendants might well skip the (largely pointless) en banc step in this case. Gee; shows what I know. Somewhere my old Federal Jurisdiction professor is cringing.

    Judging from her comments on “Maddow,” I think Lithwick reads the case basically the same way I do, though. So does The American Prospect’s Garrett Epps.

    …Just in case anyone besides me was concerned about Ophelia’s judgment in providing a soapbox to crackpot nobodies like the “guest post”er above.

  3. 3
    Ophelia Benson

    I put in an asterisk, Rieux – but I can change the post if you want to re-do those bits.

  4. 4

    Nah. The whole thing is already huge enough as it is. Thanks again.

  5. 5
    Ophelia Benson

    It’s very cool. Thank you.

    And thanks, Moses, for that gruesome little item.

  6. 6

    Hey, the “FTB Recent Posts” tab shows a crowd of us all saying pretty much the same thing now: Orrin Kerr, Lyle Denniston, and then Ed Brayton agreeing with them; and John Culhane, plus JT Eberhard quoting him with approval.

    So the chorus grows: quitcher pessimism, suckas! Stephen Reinhardt FTW!

  7. 7
    The Lorax

    Judicial Judo. That’s what this is. And it is brilliant.

  8. 8

    This largely comports with my lay take on the opinion. The bad news is that it’s now essentially impossible that this case will bring marriage equality to any place other than California. But the good news is that by ruling so narrowly, SCOTUS has a disincentive to even hear it, and if they do they are likely to uphold the ruling.

  9. 9
    Ophelia Benson

    Hahahaha – I didn’t be pessimistic because I wanted to be, I just didn’t have anything to go on and I’ve learned to fear this court. I’m happy to be happy, honest!

  10. 10

    James @8: Yes, exactly, but my version used ~30 times as many words as yours. You’ll never make it in the law business.

  11. 11
    Timothy (TRiG)

    At Box Turtle Bulletin, Timothy Kincaid analyses both the decision and the dissent and also points out possible implications for New Hampshire, which I found interesting; and Rob Tisinai remarks that NOM is lying about what the court said (hands up anyone who’s even mildly surprised).

    And at Slacktivist, Fred Clark points out that this is good news for everyone:

    It’s even good news for Prop 8 supporters, who are fuming and raving in response to the decision. But don’t worry too much about them — they enjoy fuming and raving. It’s kind of their hobby. This ruling neither picks their pocket nor breaks their leg. It doesn’t harm or inconvenience them in the least. But today’s ruling provides them another excuse to pretend they’re put-upon and persecuted, so right now they’re as close to being happy as they’re still capable of being.


  12. 12

    I’m still wondering whether Sili was making a cute joke about this @3

    I wasn’t. Sorry. Just engaging in plain ol’ Papist shaming.

  13. 13

    Pity Reinhardt is to old to get on the SC.
    But then again, I’d settle for the Kitzmiller guy.

  14. 14
    Aratina Cage

    The bad news is that it’s now essentially impossible that this case will bring marriage equality to any place other than California.

    On the other hand, with California holding almost a tenth of the total population in the USA, even if this case is only won for the state, it will have a profound reverberation throughout the USA.

  15. 15

    Although the 9th circuit does conduct en banc hearings with some frequency, I think in this case it is very unlikely. I do not think a petition for rehearing en banc would be granted by the 9th circuit, simply because I doubt enough judges on the 9th circuit have a burning desire to overturn this ruling.

    However, I think it would be a smart move for the bad guys to file a petition for rehearing en banc. If they do, O’Scannlain and company will get to write a dissent from the denial. That dissent provides extra ammo to Scalia and company.

  16. 16

    Sili @11:

    No apology necessary; your comment on the previous thread just had some extra (and terrific) wit to it that it appears you didn’t intend.

  17. 17

    Interesting links, TRiG.

    On the topic of commentators such as NOM getting the decision wrong, I’d add former U.S. Solicitor General Ted Olson, a pro-gay Republican (!) lawyer who represents the GLB plaintiffs in this very case and went on Rachel Maddow’s show last night to declare that the Ninth Circuit decision was a broad one that gives the Supremes a great opportunity to decide that gay marriage can’t constitutionally be banned. I’m not sure that he actually read Reinhardt’s opinion.

    (Of course, according to the opinion, the “concentrate on California taking away the right, not just depriving GLB couples of it” argument came from intervenor-plaintiff City and County of San Francisco, not from the individual plaintiffs who are Olson’s clients. So maybe Olson’s annoyed that the court listened more to his co-plaintiffs than to him?)

  18. 18
    Greg Laden

    Thank you very much for writing this up. Please write a post like this for all future important and interesting court decisions!!!

    Question: If the SCOTUS took up an appeal in this case, would Kennedy recuse because of his prior and very relevant work on this issue?

  19. 19
    pelamun, the Linguist of Doom

    Greg Laden:

    seeing that the opinion was at least in part directed at Kennedy as a swing note, no. It would strike me at extraordinary if a justice’s former verdicts would be grounds for recusal.

    Recusal usually occurs when there is a conflict of interest of a personal nature, like stock holdings or other financial interests, or Kagan’s stint as solicitor general.

    That said, supreme court justices do not have to recuse themselves for anything as they do not fall under the same regulations as other federal judges. It seems that neither Thomas nor Kagan will recuse themselves re the health care bill.

    (IANAL, please correct me if I got it wrong)

  20. 20

    Yup—that (other than a “note” that clearly you meant to be “vote”) is all correct AFAIK, pelamun.

    Of course, frequently when a judge/justice recuses her/himself, we never learn why. So for all we know, Scalia will recuse himself from the next big gay-marriage case. Don’t bet on it, though.

    Thanks, Greg. I doubt I’ll have the time and energy to write something like this after every big court decision, but we’ll see.

  21. 21
    Michael Ejercito

    The problem is that Romer nowhere stood for a proposition that the questions of the constitutionality of a “change in the law” is distinct from the constitutionality of the “state of the law” effected by the change. Indeed, Romerfocused on the “state of the law”. See Romer v. Evans, 517 U.S. 620 at 627 (noting that the “amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies“) A district court in Nebraska noted that the “troubling aspect of the amendment at issue in Romer was not its retrospective application to existing ordinances, but its prospective effect Citizens for Equal Protection v. Bruning , 368 F.Supp.2d 980 at 1003 (D. Neb. 2005) rev’d on other grounds , 455 F.3d 859 (8th Cir. 2006)*

    The “state of the law” that the Romer law effected was that the law forbade the state from protecting homosexuals on the basis of sexual orientation, while permitting such protection for heterosexuals. See also Equality Foundation of Greater Cincinnati v. City of Cincinnati, 860 F.Supp. 417 at 448 (S.D. Oh. 1994) (noting that “body of Issue 3[ a Cincinnati initiative facially identical to the law at issue in Romer], however, indicates that existing sexual orientation provisions are still in effect with regard to heterosexuals.”) rev’d on other grounds , 128 F. 3d 289 (6th Cir. 1997)** The Supreme Court then determined if this “state of the law” satisfied the appropriate level of scrutiny.

    This ruling effectively puts homosexuals in California on superior federal footing, protecting their interests while identical interests of homosexuals in other states are not so protected. It announced a new rule whereby many *** homosexuals in California may “marry” their same-sex partners with the full backing of the Fourteenth Amendment, while homosexuals in Arizona, Nevada, and Oregon may not rely on the full backing of the Fourteenth Amendment to protect their interests in “marrying” their same-sex partners.

    In addityion, Ilya Somin opined that “the logic of Reinhardt’s decision is that there is no “rational basis” for denying same-sex marriage in a state that already permits same-sex civil unions that give couples the same substantive rights as marriage would. In addition to California, there are seven other states that permit civil unions without legalizing same-sex marriage, including major states such as Hawaii****, Illinois, and New Jersey. Many other states are likely to enact civil unions over the next few years, because the idea is very popular, with even a plurality of Republicans supporting it, as of 2010. If the Supreme Court embraces Reinhardt’s reasoning, a state that enacts a civil union law would have to embrace gay marriage as well. That’s not a minimalist result confined to one or a few states, and the Supreme Court justices are likely to realize that.”

    * The Eighth Circuit did not contest that Romer was concerned with the prospective effect of the law.
    ** The district court struck down a Romer -like law on various grounds, including that it was unconstitutionally vague. Its vagueness ruling was vacated for mootness.

    *** A reasonable argument could be made that since the decision turned on the fact that California once allowed persons to enter into same-sex “marriages”, the ruling does not apply to California banning same-sex “marriage” for people who, for not meeting age or residency requirements, could not have entered into a same-sex “marriage” in California prior to the passage of Proposition 8.
    **** Hawaii, in fact, has civil unions, had also stripped same-sex couples of legal protections via constitutional amendment, and its officials are being sued in a marriage lawsuit.

  22. 22
    Aratina Cage

    existing sexual orientation provisions are still in effect with regard to heterosexuals. –Michael Ejercito

    Duh! That’s why the people yelling about how anti-discrimination laws are “special laws for gays” (like Jerry Prevo and other Baptists in Alaska) look like such idiots. Laws that forbid employers or housing providers from turning away people based on their sexual orientation work to protect everyone–straight people and non-straight people alike; it just so happens that currently straight people are rarely turned away because of their sexual orientation. The idea is to get to a place in time where no one is turned away for their sexual orientation no matter which sexual orientation they have.

    Once again, this is little more than religious bigots not wanting to lose their power to abuse other humans–their ability to cause real, lasting harm to LGBT people, women, Black people, immigrants, and other minorities.

  23. 23
    Greg Laden

    We need to get some good discrimination against straight people going …. on the basis of their straightness …. and see how that plays out in the courts.

  24. 24
    Michael Ejercito

    Duh! That’s why the people yelling about how anti-discrimination laws are “special laws for gays” (like Jerry Prevo and other Baptists in Alaska) look like such idiots. Laws that forbid employers or housing providers from turning away people based on their sexual orientation work to protect everyone–straight people and non-straight people alike; it just so happens that currently straight people are rarely turned away because of their sexual orientation. The idea is to get to a place in time where no one is turned away for their sexual orientation no matter which sexual orientation they have.

    It is ironic that the proponents of Cincinnati’s Issue 3 effectively created a special right for straights. Indeed, some of the plaintiffs in Equality Foundation sued because they might still face penalties in a sexual orientation discrimination case brought by a heterosexual. I wonder why none of the Romer plaintiffs made that claim, since the law at issue there was subject to a similar interpretation.

    I have explained the problems with that ruling above . I will use two more examples.

    If the government were to restore the ban on gays in the military identical to the one used in 1984, it might not necessarily survive an equal protection challenge in the Tenth Circuit* The Tenth Circuit had upheld that ban, Rich v. Secretary of the Army, 735 F.2d 1220 (10th Cir. 1984), and only the Tenth Circuit en banc or the Supreme Court may overrule Rich. But notwithstanding Rich , a district court might read into Romer a principle that denying rights to a group that previously enjoyed that right may be unconstitutional even if refusing to extend that right in the first instance was constitutional, and might strike down the policy merely because it had previously been repealed .

    Similarly, if the government were to ban all gays, except those from Florida, from military service, how can that be consistent with equal protection? What would be the rational basis? I fail to see how the government discriminating between gays, based on state residency, can be justified in a constitutional or public policy sense. And if Congress can not discriminate between gays due to state residency, neither can federal courts.

    * I am unaware of any Tenth Circuit precedent flatly rejecting the Ninth Circuit’s misreading of Romer .

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