Opinion Analysis: Ninth Circuit in Perry v. Brown, the Prop 8 case

As we noted earlier today, the Ninth Circuit panel has affirmed the district judge that Proposition 8 is unconstitutional, in a 2-1 decision.

The panel was unanimous on two points:

First, the proponents had standing.  The standing issue is convoluted in this case, for it is the standing of Hollingsworth and ProtectMarriage.com to appeal as proponents of Proposition 8, given that the state (in the person of defendant Governor Brown, formerly Schwarzenegger) refused to defend the constitutionality of Prop 8.  The panel distinguished Arizonans for Official English v. Arizona, 520 U.S. 43, (1997), stating that unlike that case,

we do know that California law confers on “initiative sponsors” the authority “to defend, in lieu of public officials, the constitutionality of initiatives made law of the State.” The California Supreme Court has told us, in a published opinion containing an exhaustive review of the California Constitution and statutes, that it does.

While a state (or other party) cannot confer Article III standing on a federal court, a state, as an "independent sovereign" possesses the prerogative to "decide for themselves who may assert their interests and under what circumstances."  Thus, the California Supreme Court's decision is outcome determinative.

Second, Walker's sexuality was not a reason to vacate his opinion.  More precisely, applying the abuse of discretion standard, District Judge Ware, who replaced Judge Walker Vaughn, was affirmed regarding the denial of a motion to vacate Walker's judgment based on Walker's sexuality. 

The panel divided on the central issue: the constitutionality of Prop 8 itself.  The majority opinion, authored by Reinhardt concluded that Proposition 8 was unconstitutional.  Reinhardt begins the panel majority opinion with an important framing of the issue:

Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike. On that day, the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.

Thus, Judge Reinhardt's opinion continued, Prop 8 "therefore could not have been enacted to advance California's interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples."  Additionally it did not "have any effect on religious freedom or on parents' rights to control their children's education; it could not have been enacted to safeguard these liberties."  Instead, all that Prop 8 "accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships."  Later in the opinion, the panel majority provides examples of the cultural significance of "marriage" as a term:

Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx's one-liner, “Marriage is a wonderful institution ... but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare's “A young man married is a man that's marr'd,” Lincoln's “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra's “A man doesn't know what happiness is until he's married. By then it's too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for samesex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. . . . .

Thus, for the panel majority, Prop 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 panel majority stated that the "Constitution simply does not allow for 'laws of this sort,' " quoting and citing  Romer v. Evans, 517 U.S. 620, 633 (1996).

Indeed, Romer v. Evans - - - in which the Supreme Court invalidated Colorado's Amendment Two that had prohibited any policies, ordinances, or laws that allowed claims of discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships" - - - is a lynchpin of the panel majority's analysis.   Like Amendment 2, Prop 8 eliminated a pre-existing right:  "as the voters were told," Prop 8 would “eliminate the right of same-sex couples to marry in California.” :

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.

Applying Romer's heightened rational basis scrutiny with its emphasis on animus as not satisfying a legitimate state interest, the panel majority finds Prop 8 - - - as an initiative that changed the status quo - - - to be unconstitutional.

Judge Smith, dissented as to the constitutionality of Proposition 8, largely arguing that Romer v, Evans was distinguishable.

The majority panel's final footnote forestalls the effect of the decision: "The stay pending appeal issued by this court on August 16, 2010 remains in effect pending issuance of the mandate."

The proponents now have to decide whether to seek a rehearing enbanc by the Ninth Circuit or to petition the United States Supreme Court for a writ of certiorari.  Doubtless, they will do one or the other.  And the complex Prop 8 saga will continue.

RR