Proposition 8

  • February 10, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at USC Gould School of Law. She is the author of the 2010 ACS Issue Brief, “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role.”


    The Ninth Circuit did a great job this week in deciding the Perry case, involving the constitutionality of Proposition 8 — not only because of the result it reached, but because of how it got there. I think the court did a great service to the plaintiffs in Perry (as well as those similarly situated), to the state of California, and to the Constitution itself. I say this because the court focused very carefully and narrowly on the facts of the particular case, and did not yield to the temptation, always present in a sensational case, to be dramatic, to exaggerate, or to stretch the law. Instead, in my view, the court did exactly what we want a court to do when faced with any Equal Protection challenge:  to consider very carefully the interests that the state offers in support of its unequal treatment of some of its people, and to insist that those interests be both genuine and closely tied to the law under attack. 

    On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage.  The court found none.

  • February 8, 2012

    by Jeremy Leaming

    As noted here yesterday Ninth Circuit Court of Appeals Judge Stephen Reinhardt wrote in Perry v. Brown that the state of California had no reason to strip from lesbians and gay men the right to wed. It was a classification of a group of people for apparently hostile reasons that doomed the rabidly anti-gay ballot measure, Proposition 8.

    The writer and law professor Garrett Epps provides for The American Prospect, not surprisingly, a clearer understanding of Reinhardt’s opinion, which many pundits suggest could, if not likely, reach the Supreme Court.

    Epps notes that Reinhardt (pictured) is a “last great liberal lion of a once-numerous pride,” who has authored “dozens of decisions that embody old-style judicial liberalism (including one that terminally ill individuals have a right to seek medical assistance in suicide).”

    But in this case that lion, Epps says, has crafted an opinion that may have a longer “shelf-life” than many of his other decisions. For the opinion, did not sweepingly find that gays have a fundamental right to marry. As ACSblog noted, Reinhardt was focused on the targeting of a group of people for ill treatment, rather like the matter that resulted in the Supreme Court’s 1996 opinion in Romer v. Evans, where Justice Anthony Kennedy led a majority in finding unconstitutional Colorado’s noxious Amendment 2, a voter passed measure altering the state constitution to prohibit localities from enacting policy protecting lesbians and gay men from discrimination.

    Epps says in his latest opinion, Reinhardt may have been itching to roar – “to say something broader about human dignity and the essential worth of gays and lesbians.”

  • February 7, 2012

    by Jeremy Leaming

    In a striking, though perhaps short-lived, victory for marriage equality, a federal appeals court panel invalidated California’s infamous Proposition 8, a ballot initiative that had overturned same-sex marriage in the state.

    The U.S. Court of Appeals for the Ninth Circuit ruled 2 -1 today that the anti-equality measure “served no purpose, and no effect, other than to lessen the status and human dignity of gays and lesbians,” the Los Angeles Times reports. The Ninth Circuit majority concluded that Prop. 8  subverts the U.S. Constitution’s equal protection clause.

    Prop. 8 was passed, with the backing of religious right organizations, not long after the California Supreme Court ruled that a right to wed could not be denied to same-sex couples, and that doing so would violate the equal protection rights of lesbians and gay men. Prop. 8 amended the state constitution to bar same-sex marriage.

    The majority opinion in Perry v. Brown, written by Judge Stephen Reinhardt (pictured) upheld a lower federal court ruling by retired federal judge, Vaughn R. Walker, which invalidated Prop. 8.

    “Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners – rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship,” Reinhardt wrote.

    Prop. 8 also resulted in an ignoble state constitutional rule that protected marriage only for straight couples, Reinhardt said.

    “In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it,” Reinhardt wrote.

  • November 22, 2011
    Guest Post

    By Courtney Joslin, a professor at UC Davis School of Law


    Last week, the California Supreme Court again waded into the issue of marriage for same-sex couples. The California Supreme Court issued an advisory opinion explaining the rights under California state law of the official initiative Proponents to defend the measure in court when state officials decline to do so. What is the impact of the court’s opinion on the pending Perry v. Brown litigation and where does the case go from here?

    Standing

    In May 2009, two same-sex couples sued various California officials in federal district court challenging California’s same-sex marriage ban – Proposition 8 – under the U.S. Constitution. All of the state officials refused to defend Prop 8 (although the Attorney General was the only named defendant to argue affirmatively that Prop 8 is unconstitutional). When the official Proponents of Prop 8 sought to intervene in the litigation, no party opposed their intervention, and the court granted the motion. The Proponents were the only parties who defended Prop 8 in the district court.

    In August 2010, federal district judge Vaughn Walker ruled that Prop 8 violated the U.S. Constitution. The Prop 8 proponents appealed this decision; no state official sought further review. Commentators and the Ninth Circuit itself questioned whether the Proponents had standing to appeal the decision in the absence of the state defendants. Although the U.S. Supreme Court has not definitively resolved the issue, there is language in prior Supreme Court decisions suggesting that the standing of ballot initiative proponents may turn on their rights under state law. Accordingly, after oral argument, the Ninth Circuit certified the following question to the California Supreme Court: “[w]hether under [California law], the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative validity[.]”

    On November 17, 2011, the California Supreme Court unanimously answered the question in the affirmative. This conclusion, the court explained, was necessary to protect the integrity of the initiative process. A contrary result, the court said, would permit government officials indirectly to “veto or invalidate an initiative measure that has been approved by the voters.”

    The California Supreme Court’s conclusion that the proponents would be permitted to defend the measure in state court was not surprising to anyone who had been following the case. What was at least somewhat surprising, however, was the fact that the court not only purported to explain the rights of ballot initiative sponsors as a matter of state law, but that it went further and offered its assessment of whether they had standing as a matter of federal law. In its analysis, the California Supreme Court assumed that Supreme Court case law addressing the standing of legislative leaders is equally applicable to initiative sponsors; that is, that initiative sponsors have Article III standing if state law authorizes them to represent or act on behalf of the state’s interest. 

  • July 28, 2011
    Video Interview

    by Jeremy Leaming

    Beyond the most recent high-profile state legislative victories for marriage equality, there are “huge advancements that have been made in terms of [court] doctrine regarding sexual orientation law,” North Carolina University law school professor Holning S. Lau told ACSblog.

    Lau, a panel participant at the ACS 10th Anniversary National Convention, said that until recently “there was virtually no precedent to be cited for the proposition that sexual orientation discrimination should be subject to heightened scrutiny -- this idea that sexual orientation is a suspect or quasi-suspect status. But over the past few years, we’ve seen a crystallization of jurisprudence to support that point. The high courts of California, Iowa, Connecticut, have all issued opinions saying that sexual orientation is either a quasi-suspect or suspect status."

    He continued, “We saw the same conclusion reached in Perry v. Schwarzenegger [the 2010 federal court opinion invalidating California’s anti-gay marriage law, Proposition 8], in Eric Holder’s memo on DOMA [the federal anti-gay marriage law]. And that’s been huge, because prior to this burgeoning of jurisprudence on this point, a lot of courts concluded in the opposite direction.”

    So while a few state legislatures, most dramatically, the New York legislature, have come through in favor of marriage equality, there is a slowly developing body of jurisprudence that looks promising for the advancement of equality for the LGBT community.

    “We’ve seen the jurisprudence really reach a new point,” Lau said, “and there is good case law, persuasive case law, in many instances … case law that courts can make use of to support the idea that sexual orientation discrimination should be subject to heightened scrutiny.”

    Earlier this month, Professor Scott Lemieux wrote, in a piece for The American Prospect, that the LGBT community must not forgo the courts in seeking full equality. All options must be used in securing equality, he wrote.

    Watch video of Lau’s entire interview below or download it as a video podcast. The video is also available here.