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Next Stop, the Supreme Court

June 5, 2012

The federal Court of Appeals in San Francisco today declined to reconsider its ruling in February, striking down California’s Proposition 8.  Therefore the court’s February ruling stands.  The ruling found that the 2008 California voter referendum that took marriage rights away from same-sex couples was unconstitutional.  Marriage equality opponents have until September 4 to ask the Supreme Court to review the case.

I never understood the strategy behind the decision by marriage equality opponents to seek reconsideration.  I thought marriage equality opponents would go straight to the Supreme Court.

Seeking reconsideration from the Ninth Circuit Court of Appeals was a long shot.  The way it works is that all of the court’s active judges, plus any senior judges who were part of the original three-judge panel, get to vote on reconsideration.  The court has 26 active-duty judges – 18 appointed by Presidents Carter, Clinton and Obama, and only eight appointed by Presidents Reagan, Bush and Bush.  The original three-judge panel had one senior-status judge, a Clinton appointee.  So marriage equality opponents were pleading their case to a group of judges, fully two-thirds of whom were Democratic appointees.

The Court of Appeals doesn’t reveal the vote tally on decisions whether to reconsider a case, so all we know is that reconsideration didn’t get a majority of the votes.  There was a three-judge dissent from denial of reconsideration, signed by a Reagan appointee and two George W. Bush appointees.  And there was a two-judge rejoinder written by the two judges who were in the majority in the original decision – a Carter appointee and a Clinton appointee.  The dissenter on the original three-judge panel was also a George W. Bush appointee.

In other words, we know how six of the 27 eligible judges voted, and those six voted according to the party of their appointing president.  Until one of the judges (or a law clerk) writes a memoir, we have every reason to assume that the 27 votes broke by party line, or at least close.

Of course this bodes ill for Supreme Court review – five of the nine justices were appointed by Republican presidents.  But Justice Kennedy, although a Reagan appointee, has been notable in his opposition to discrimination against lesbians and gay men.  Like many others, I have opined that Justice Kennedy will cast the deciding vote in this case.

But on the whole, I’m not especially optimistic for this case.  I’m not sure that Kennedy’s two famously pro-gay decisions tell us much about this case.  In Romer v. Evans, Kennedy struck down a Colorado constitutional provision that banned municipalities from adopting laws protecting homosexuals from discrimination.  In Lawrence v. Texas, Kennedy struck down a Texas law criminalizing sodomy.  The Romer ruling directly affected only one state.  The Lawrence ruling came at a time that many states (and nations) had decriminalized sodomy, and those states remaining almost never enforced their sodomy laws.

By contrast, most of the states in the country (and most of the countries in the world) prohibit same-sex marriage.  A majority of American states have put their prohibitions into their constitutions.  These are not musty old laws in dusty old books – these are laws adopted in the last 20 years, as recently as last month, in North Carolina.  Many of these laws were adopted by state-wide voter referendums – the purest expression of popular democracy we have.

It’s true, as I have observed, that the Court of Appeals panel’s decision was carefully crafted to appeal to Justice Kennedy, invoking his Romer decision at every opportunity.  The idea is that the case does not call for a sweeping validation of same-sex marriage, because California is unique – California gave same-sex couples the right to marry, and some did, and then California took that right away again.  But in truth, the distinction between taking a right away and denying the right in the first place isn’t all that compelling, and I don’t think it will move the Supreme Court’s justices.

So as much as I hate to say it, it would be a really big deal for Justice Kennedy to vote for marriage equality, and I’m afraid it’s just too much to ask.  Still, in the long run, I’m optimistic, for two reasons.

First, when it comes to constitutional questions of really big social impact, the Supreme Court not uncommonly gets it wrong before it gets it right.  The Supreme Court decided that separate was equal in 1896, before deciding that separate is not equal after all in 1953.  The Supreme Court let slide Virginia’s miscegenation law in 1955 and 1956 before tossing out all miscegenation laws in 1967.  The Supreme Court found sodomy laws to be perfectly constitutional in 1986 before finding them to be completely unconstitutional in 2003.  The Supreme Court found that an escaped slave was not a citizen entitled to constitutional protection in 1857, and upheld internment of Japanese-Americans in 1943 and 1945 – errors that had to be corrected elsewhere than by the Court itself.

Why does that make me optimistic?  The logical appeal of marriage equality is compelling, as evidenced by the remarkably rapid advance of public opinion on the issue.  Compelling logic and increasing popular acceptance makes a pretty good recipe for success.  I’m old enough to appreciate the value of gradual change.  The Supreme Court’s decision in Brown v. Board was the product of Thurgood Marshall’s 30-year-long litigation strategy.  Same-sex marriage has been a legal issue for just 20 years.

Second, it just happens that there’s another same-sex marriage case on its way:  the First Circuit Court of Appeals decision last week striking down part of the Defense of Marriage Act.  In that case, unless same-sex marriage opponents take another reconsideration detour, they have to seek Supreme Court review by August 29.  In other words, the DOMA case from the First Circuit and the Proposition 8 case from the Ninth Circuit will be up for consideration by the Supreme Court at the same time.

Legally, the Supreme Court has complete discretion to decide to review a case.  But in reality, ducking an important national issue without any apparent reason undermines the credibility and legitimacy of the court.  My opinion is that the Supreme Court can’t duck both cases.  If it ducks one, I think it would be the Proposition 8 case.  To me, the DOMA case is an easier case, and the one where Justice Kennedy is a more reliable vote for marriage equality.

In the DOMA case, the question is not whether any state, or all states, must allow same-sex marriages.  The question is whether the federal government must honor a marriage that has been performed in full conformity with a state’s laws.  The feds don’t decide who can get married; what federal law does regarding marriage is to assign certain federal rights and responsibilities to people who the states have declared to be married.  States decide whether cousins can marry, whether 14-year olds can marry, whether inmates can marry – and the feds honor those decisions, and assign federal rights and responsibilities to all married couples without distinction.  Assigning federal rights and responsibilities to all legally married couples alike, except only same-sex couples, looks like picking on people – which is what I think bothered Justice Kennedy in the Romer case – Colorado said that municipalities are free to prohibit discrimination on any ground they want, except sexual orientation; Justice Kennedy said that is not the American way.

There is a very strong prospect that at least one state this November will approve same-sex marriage by voter referendum – same-sex marriage advocates are leading in the polls in Maine, Maryland and Washington.  If a state’s voters approve same-sex marriages by referendum (the purest expression of popular democracy) and yet the federal government doesn’t recognize those marriages – that’s just mean.  And I think that Justice Kennedy will vote against meanness.

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