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It All Comes Down to Kennedy

February 11, 2012

The federal Court of Appeals that heard the California gay marriage case issued its decision this week.  By a two-to-one majority, the Court found the Proposition 8 voter initiative to be an unconstitutional violation of same sex couples’ right to equal protection of the law.

The Court’s rationale was narrower than the lower court’s was.  The lower court concluded that any ban on same-sex marriage is unconstitutional.  The appeals court limited its decision to cases involving three circumstances that occurred in California:  same-sex couples in California had the legal right to marry before Prop 8; they had and still have “virtually all” of the “incidents” of marriage, meaning the benefits and obligations of marriage; and Prop 8 took away the label of marriage, leaving same sex couples with the “incidents” of marriage by another name – domestic partnership.  The appeals court also referred many times to the fact that the case involved a voter initiative rather than a legislative act, although it’s hard to see any constitutional significance in that.

Since Prop 8 took away the marriage label, without taking away any of the marriage-like rights that same-sex domestic partners enjoy in California, the Court concluded that the law was motivated by disapproval of gay people.  Singling out a group of people for state-sponsored disapproval is not a legitimate purpose for a law.

Clearly, the Court of Appeals was trying hard to make its ruling as limited as possible.  So far, there has been no other state where a law or judicial ruling according same-sex couples the legal right to marry has been overturned by referendum, let alone a state where same sex couples in domestic partnerships or civil unions retained the “incidents” of marriage after the referendum.

Aside from the judicious desire to find the narrowest ground for ruling, I suspect another motive.

The issue of gay marriage is so important right now, and a federal appellate ruling in favor of gay marriage is so novel, that it is all but certain that the Supreme Court will agree to decide the case.  The liberal bloc on the Court, Justices Breyer, Ginsberg, Kagen and Sotomayor, are likely, but not certain, to side unanimously with gay marriage proponents.  The conservative bloc, Chief Justice Roberts and Justices Alito, Scalia and Thomas, is even more likely to be unanimous against gay marriage.  That leaves Justice Kennedy.

Ordinarily, Kennedy leans more often right than left.  But he has a record of remarkably empathetic decisions in gay rights cases.  Most importantly here, Justice Kennedy wrote the majority opinion in Romer v. Colorado in 1996.  Here are some key facts about the Romer case:

  • Romer involved an amendment to the Colorado constitution that prohibited municipalities from outlawing discrimination against gay people
  • Before the constitutional amendment was adopted, gay people had the right, and had exercised it successfully in some instances, to lobby their local governments for legislation barring discrimination against gay people
  • After the constitutional amendment was adopted, Coloradans retained the right to lobby their local governments for anti-discrimination legislation on any basis except sexual orientation
  • The constitutional amendment was adopted by voter referendum.

It’s no coincidence that this sounds a lot like the gay marriage case.

In both cases, the fact that the constitutional amendment was adopted by voters instead of by legislators seems to me to be completely irrelevant to the constitutional analysis.  But the Court of Appeals in today’s decision mentioned it over and over again, obviously trying to tie this case as closely as possible to Justice Kennedy and the Romer decision.

Judges are not supposed to be advocates; they think of themselves as declaring the law, not advocating a position.  It’s common enough for judges to write decisions with an eye to the next higher court, but usually they’re a little more subtle about it.  This decision seems to me to be so blatantly aimed at getting Justice Kennedy’s vote that I wonder if it might backfire.

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Although the losing party at the Court of Appeals level ordinarily has 90 days to ask the Supreme Court to consider the case, gay marriage opponents won’t wait that long, for three reasons.  First, the cultural right will want gay marriage to be as prominent an election issue as possible, for as long as possible.  If the Supreme Court adjourns for the summer without deciding whether to take the case, the next opportunity for Supreme Court action will be the first week of October.  So if the Court of Appeals losers wait 90 days to file their Supreme Court papers, and the Court of Appeals winners take 30 days to respond, under the Supreme Court rules the case would not be available for the justices’ consideration until mid-June, making it less likely that the justices would decide whether to take the case before recessing for the summer.

Second, the last thing that gay marriage opponents want is to give President Obama any opportunity to replace a conservative justice with a more moderate one.  The right knows that, even if they get Justice Kennedy’s vote, they need all four members of the conservative bloc.  Given Justice Ginsberg’s age and health, there is at least as much chance that the next vacancy will be created by a liberal departure as by a conservative one.  But as long as President Obama is in office, the successor to either is likely to be progressive.  So the right needs to get this case decided either before any of the conservatives leave the court.

Third – and most important – gay marriage opponents won a “stay” of Judge Walker’s lower court decision.  The stay prevented enforcement of Judge Walker’s decision while the appeal was pending. Under the rules governing appeals, the stay remains in effect until the Court of Appeals issues its “mandate.”  (A mandate is a document that formalizes the Court’s decision.)  The rules provide that the mandate is ordinarily to be issued 21 days after the Court’s decision.  If a request for Supreme Court review is filed before the mandate is issued, the stay automatically remains in effect pending further Supreme Court action.  If the stay does not automatically remain in effect, gay marriage opponents would have to file motions to renew the stay.  Those motions might or might not be granted.  If there is no stay, the Court of Appeals’ decision would go into effect, and same-sex marriages would resume in California.

So we’ll see a request for Supreme Court review within 21 days – by February 28.  Gay marriage advocates will then have until March 28 to file their response.  The case goes to the justices 10 days later, after which it can be considered at each succeeding weekly conference of the justices.

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