Perry v. Brown

  • June 5, 2012

    by Jeremy Leaming

    The movement for marriage equality, part of a much more expansive effort to advance equality for the LGBT community, avoided a setback as a federal appeals court in San Francisco refused to reconsider its ruling from earlier in the year that invalidated California’s anti-gay measure Proposition 8.

    Proponents of Proposition 8, which barred same-sex marriages in the state, had urged the entire U.S. Court of Appeals for Ninth Circuit to review and reverse a three-judge panel’s February ruling. But a majority of the Circuit’s judges voted against reconsideration, the Los Angeles Times reported.

    In February, the Ninth Circuit panel ruled 2-1 that Proposition 8 “served no purpose and no effect, other than to lessen the status and human dignity of gays and lesbians.” Writing for the majority in Perry v. Brown, Ninth Circuit Judge Stephen Reinhardt said, “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 their other rights and responsibilities as partners – rights and responsibilities that are identical of those married spouses and form an integral part of the marriage relationship.”     

    Today, three of the Ninth Circuit’s judges lodged a dissent saying the full Circuit should have reviewed the panel’s opinion. The dissenters accused their colleagues of muzzling “respectful conversation” of same-sex marriage. “Even worse,” they continued, “we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

    In its February opinion, Reinhardt (pictured) cited the Supreme Court’s Romer v. Evans opinion that invalidated Colorado’s effort to use state law to marginalize a group of people, namely gay men and lesbians. Reinhardt noted that in Romer, the high court said Colorado’s constitutional amendment preventing localities from implementing laws protecting lesbians and gay men from discrimination undermined equal protection principles, saying that it was “not within our constitutional tradition to enact laws of this sort,” which targets “a certain class of citizens for disfavored legal status.”

    Reinhardt also lamented the impact of Proposition 8, which yanked marriage equality rights from same-sex couples not long after the California Supreme Court ruled that the state’s constitution granted them the right to wed.

  • 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?


    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.