Last Chapter for Proposition 8?

Posted on 05 June 2012

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By Shannon Minter, Esq., and Christopher Stoll, Esq.
National Center for Lesbian Rights   

On June 5, 2012, the U.S. Court of Appeals for the Ninth Circuit ruled that it would not reconsider a three-judge panel’s February 7 decision striking down Proposition 8, the 2008 ballot measure that stripped same-sex couples in California of the freedom to marry. Following a vote by all 27 active Ninth Circuit judges, the court declined to send the case to a larger panel of judges that would have reconsidered the February decision. 

Tuesday’s decision lets stand the original panel’s 2-1 decision, written by Judge Stephen Reinhardt and joined by Judge Michael Daly Hawkins. Judge Reinhardt’s opinion struck down Proposition 8, but did so on narrow grounds based on the unprecedented circumstances surrounding the enactment of Prop 8. In 2008, the California Supreme Court held that same-sex couples are entitled to full marriage equality. Following that decision, thousands of those couples married.  

Six months later, a ballot initiative amended the California equal protection clause in order to reinstate a discriminatory marriage law, relegating same-sex couples and their children back to a status that the California Supreme Court had already found to be unequal.   

In light of that unique history,  the Ninth Circuit decided in February that Prop 8 failed the most basic constitutional test of equal protection of the laws. Judge Reinhardt wrote: “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 of opposite-sex couples. The Constitution simply does not allow for laws of this sort.”

Today’s decision sets the stage for the supporters of Prop 8 to ask the United States Supreme Court to review the case. Review is not automatic – it is up to the Supreme Court to decide whether to take the case or let the Ninth Circuit's decision stand. And there are good reasons to think that if the Court applies its usual criteria for deciding whether to hear a case, it may decline to review the case and let Judge Reinhardt’s measured, carefully crafted decision take effect.

Traditionally, the Supreme Court hears cases only when multiple decisions of lower federal courts are in conflict, or when there is an issue of overriding national importance that requires a consistent ruling throughout the country -- such as the recent court challenges to President Obama’s Affordable Care Act. Neither of those considerations is present in the Prop 8 case.

No other federal court has even considered a marriage case that involves the unprecedented circumstances that led to the passage of Prop 8, let alone issued a decision that is inconsistent with Judge Reinhardt’s masterful analysis. And there is no reason the Supreme Court needs to use this case to issue a pronouncement on marriage equality in general.  As Judges Reinhardt and Hawkins wrote in their special concurrence to today’s order, “That question may be decided in the near future, but if so, it should be in some other case, at some other time.”

It is unlikely that the Supreme Court will decide whether to take the case until at least October. If the Court doesn't take it, the 9th Circuit's decision will become final and Prop 8 will be history. If the Supreme Court does decide to review the case, its decision should be issued by July of 2013. The Ninth Circuit's decision is on hold until the Supreme Court either turns down the case or issues its decision, so California couples can't start getting married just yet. 

For nearly four years now, same-sex couples in California have been unjustly denied the ability to express their caring and commitment for one another by getting married. They have waited long enough. If the Supreme Court chooses the path consistent with its usual criteria for selecting cases,  it will leave the Ninth Circuit’s decision in place and restore civil equality in California by the end of the year.
That said, if the Supreme Court decides to hear the case, the Constitution compels the same conclusion reached by the Ninth Circuit. If the Supreme Court were to uphold Prop 8, it would be the first time the Court put its stamp of approval on a law that discriminates based on sexual orientation in nearly thirty years. The Court has not approved such a law since 1986, when it upheld Georgia’s prohibition on same-sex intimacy in Bowers v. Hardwick. 

The Court subsequently repudiated that decision in Lawrence v Texas in 2006, holding that Bowers was “wrong when it was decided, and it is wrong now.” Whatever the future holds for the Perry case, it seems unthinkable that the Court would turn back the clock and permit a law that openly discriminates against same-sex couples and their children to stand. 


Shannon Minter is the Legal Director for the National Center for Lesbian Rights; and Christopher Stoll is a Senior Staff Attorney for the National Center for Lesbian Rights.