As pretty much everyone knows, a federal judge has ruled that the California constitutional amendment, passed as Prop 8, which defined marriage as between one man and one woman, is unconstitutional. This decision may be appealed to the 9th Circuit, and thence to the SCOTUS.
Let’s assume the “notoriously liberal” 9th Circuit upholds the original judge’s decision, and that SCOTUS decides to hear the appeal.
First question: With the current makeup of SCOTUS, what is the likely outcome?
Second question: If Scotus upholds this decision, and on the same basis as the original decision, what are the implications for federal laws like DOMA, for DADT in the military, for federal agencies’ (e.g. IRS) recognition of such marriages, etc.?
I am completely at sea here. I have tried to follow some other threads about levels of scrutiny, but they lost me. So to any lawyers responding, please, for the sake of the 99% of us on this board who are lay people where the law is concerned, please keep it as simple as you can, with many examples to illustrate your points.
Roddy
The scrutiny level is key, so you really can’t understand the rulings without understanding them. If they determine that sexual orientation is like gender, and should receive intermediate level scrutiny, then they pretty much have to rule against Prop 8. If they go for rational basis, then they could uphold it.
You should be able to get a good enough understanding of the scrutiny levels in wikipedia.
Well I do not know how they would rule, but here are some of the options.
The right to marry someone of the same sex is not a fundamental right. The fundamental rights doctrine is usually applied only to those liberty interests so deeply rooted in the nation’s history and traditions. This is the standard the Court has been using for the last several decades. Same sex marriage does not meet this standard, and consequently, strict scrutiny will not be applied (prior to Lawrence v. Texas, the due process clause of the
14th Amendment only protected liberty interests which were fundamental rights.) Hence, I do not expect them to find same sex marriage to be a fundamental right, but they could anyway, and apply strict scrutiny if they do.
However, the fact the liberty interest involved is not a fundamental right does not mean the due process clause of the 14th Amendment does not protect this liberty interest. The Court in the case of Lawrence v. Texas, refused to find same sex sodomy as a fundamental right, but nevertheless found a liberty interest was protected by the due process clause of the 14th Amendment and applied the rational basis test.
J. Scalia was not happy with this outcome in Lawrence because he predicted this would eventually lead to people seeking refuge for all sorts of liberty interests under the 14th Amendment’s due process clause and the Court’s newly fashioned rational basis test to protect them. J. Scalia noted that until Lawrence v. Texas, the Court had refused to protect those liberty interests under the due process clause of the 14th Amendment unless they were rendered “fundamental.”
Of course, the Court may be aware of J. Scalia’s premonition and decide to resolve the case under the Equal Protection Clause of the 14th Amendment, and avoid making any decision under the due process clause of the 14th Amendment.
One possible argument to be made in relation to the equal protection claim would be this is discrimination on the basis of gender, and therefore, intermediate scrutiny should be applied. The gender discrimination argument focuses upon the fact it is the gender of the spouse in which the discrimination is predicated upon.
The other argument is the Court could find a fundamental right exists, and Proposition 8 discriminates in the exercise of this right, in violation of the Equal Protection Clause of the 14th Amendment.
Or, we could get rational basis review under the Equal Protection Clause.
I think the opponents of Proposition 8 win this under the due process or equal protection clauses of the 14th Amendment, perhaps both. I think the vote may be 4-4, with J. Kennedy as the deciding vote, in favor of opponents to proposition 8, as he wrote in favor of same sex individuals in the cases of Romer v. Evans, and Lawrence v. Texas.
A 5/4 ruling. It could go either way, but it’ll be 5/4 vote.
DOMA will be gone, totally, and completely gone. All federal agencies would need to recognize same-sex marriages on the same basis as opposite-sex marriages. So would all states and same-sex couples would be able to marry in all states. Even with all of the “deference” the courts traditionally give the military I don’t see how DADT could survive this. And even it it did it would lead to odd instances where same-sex spouses of servicemembers would be entitled to spousal benefits up until the point their spouses were discharged.
Only if you first pass the rational basis test, which the judge ruled Prop 8 does not.
AIUI only the state can appeal, not any outside group, right? So if Brown and Ahnold decide not to, does that establish equal marriage rights over the entire West?
It’s pretty clear the only way to stop same-sex marriage is with a U.S. Constitutional Amendment. I don’t see that happening, so in my opinion it is inevitable that same-sex marriage will happen in the U.S. eventually.
The current, unbalanced situation where it is legal in only some states, but explicitly illegal in others, cannot be sustained.
But the question in the OP pertains specifically to California’s Prop. 8. I think if I were a betting man, I’d narrowly bet on the SCOTUS ruling 5-4 that Prop. 8 is indeed unconstitutional. If that outcome occurs, people (except for a few relentless bigots) will largely accept it and move on, and American society will survive.
I don’t think anyone is claiming that it is. Proponents of same sex marriage feel that the right of two consenting adults to marry is a fundamental right, regardless of the sex of the couple.
That’s not a meaningless distinction. No one is saying “We want to be granted a new right”. They’re saying “We want to be granted the same right that opposite-sex couples already have”.
There are intervenors in the case – basically, people who are granted the right to enter the case on a certain side because their rights are at stake, esp. when there’s reason to think that the named defendants won’t be zealous in the advocacy of those rights. (As here, when the original named defendants – state and local officers – are pretty much unanimously in favor of overturning the Prop.) Intervenors, once granted entry, are parties to the case and, like any party, can appeal parts or all of the ruling with which they disagree. (Anyway, if there were no appeal at all, it would apply only to the parties of the case. Since the state is a party, it would apply throughout California, but in no other state.)
But none have been granted entry so far, or are likely to be, right? And what would be the rights they could claim to have at stake anyway?
As for the second part, why wouldn’t the judge’s ruling apply across the entire Ninth? Sure, there’d have to be a suit in every state involved that didn’t just start complying, but ultimately those cases would be decided by this ruling, right?
No. Assuming the 9th Circuit decides that the intervenors don’t have a right to appeal, and that holds up and there is no appeal, the California amendment will be overturned, but not anything else. This was a district court decision, and the district court only has jurisdiction over a specific judicial district. So a gay couple in, say, Washington State, wouldn’t be allowed to marry. Now if this were successfully appealed to the 9th Circuit, and the 9th Circuit upheld the decision, than that decision would be binding precedent and equal marriage rights would be established over the entire 9th Circuit (which are the states of Arizona, California, Nevada, Montana, Idaho, Washington, Oregon, Alaska, and Hawaii).
I don’t think the Supreme Court, as currently constituted, will uphold this decision. Issues of jurisprudence aside, I don’t think of Kennedy as the type of guy who is willing to make that kind of sweeping change to the cultural landscape, even though he’s got an on-balance gay-friendly history.
If the SupCt were to uphold the decision, I agree that DOMA will be immediately struck down. It has two parts – 1) no state is required to accept the ssm issued by another state, and 2) the federal government won’t recognize ssm. 1) is unconstitutional under the rationale in Perry, because all states [have to recognize all same sex marriages. 2) is unconstitutional because Perry says SSM is required under the Due Process Clause of the 14th Amendment, which has the same contours as the DP Clause of the 5th Amendment, except it applies to the federal government.
As such, the IRS and other federal agencies would almost certainly recognize SS marriages. For one thing, DOMA aside, the federal government doesn’t take a position on which marriages are valid – if the state said it’s a marriage, the fed takes their word for it.
As for DADT I suppose you could envision a regime where gay marriage is legal but gay service still isn’t. The Perry decision doesn’t rest on Equal Protection grounds – that is, it doesn’t say homosexuality is a class we need to protect from discrimination as we do race or sex. It is specifically about marriage, a fundamental right (so says Perry) protected under the Due Process Clause. So long as that distinction is maintained, sustaining Perry doesn’t require the courts to erase *all *instances of discrimination based on orientation – it just means queers can marry. That said, it seems like it would be awful tortured legally, and from a social perspective, you would expect it to disappear pretty quickly, either by law or through a subsequent court case.
Elvis, there are intervenors already in the case – Hollingsworth, et al. (apparently the official proponents of Prop 8, as that is defined under California law). There are also, apparently, some groups that sought to intervene and were denied. Hollingsworth or any of his co-intervenor-defendants can appeal. Also, any of the entities that attempted to intervene as defendants and were denied can appeal that. (And if they succeed there, they can then appeal the merits.)
To slightly correct Captain Amazing’s response: as he notes, Perry is so far just a District Court decision. (Specifically, the Northern District of California.) District court decisions do not typically have precedential effect. The reason the state is bound by this decision is not because of precedent, but because it was a party to the suit. (To be precise, several officers of the state were parties, but that’s for technical reasons.)
If there’s no appeal that is where things will lie. But, assuming there’s an appeal to the Ninth Circuit and the Circuit upholds the decision, then that (like all Ninth Cir. decisions) will have precedential weight throught the whole Ninth. And therefore it will apply to all the states listed. (And if they don’t comply right away, you’re right, there will be another law suit against each hold out state, which it will lose because of the precedent of the Ninth Circuit ruling in Perry.)
They really are playing with fire, then, aren’t they? If the anti-SSM crowd conceded California (pinko commie liberal den of sin that we are anyway), that would be that. They go to the SC and lose. . . then it’s game over and they can’t stop gay people from getting married in Mississippi.
On the other hand, demographics are really not on their side, so it may be now or never.
Isn’t Massachusetts suing the federal government on just this issue-- that the federal government can’t tell the state of MA that a marriage it declares valid to be not valid?
Again, I very much doubt that the Supreme Court will uphold Perry. In fact, it’s the plaintiffs that are playing with fire, as the most likely outcome to my mind (assuming the Supreme Court ever hears the case, which it might not for collateral reasons) is that there is a Supreme Court ruling that the U.S. Constitution *does not *demand that states recognize same sex marriages.
Well, the fed does that because DOMA says so. As I say, once DOMA goes, that practice should stop.
Well, if the SCOTUS justices decide to be political and render decisions based on their feelings if gay sex is icky to them or not then I suppose you are right.
However, if they apply the law and simple, rational thinking there is no way they can fail to strike down DOMA and Prop-8 and all their ilk.
Note it was not “Perry” that said marriage is a fundamental right. It was in Loving v. Virginia where it was established by the Supreme Court:
It is hard to see from that decision how SSM could be banned.
Frankly whichever justices rule against SSM will find themselves on the wrong side of history and I think that group cares about such things. I doubt they want to be remembered in the history books alongside the likes of Justice Roger Taney.
Perhaps Scalia, Thomas, Alito and Roberts won’t care and will show their partisan stripes but I think Kennedy may well see future history watching him so would rule to allow SSM.
Of course no one can say for certain till it happens.
The judge’s ruling on the stay raised serious questions about the right to appeal of the intervenors. I am not saying that they do or don’t but it is certainly a bit muddy at this point.
:rolleyes: I think it likely the Court, if it gets there, will strike down [iPerry* because they don’t like extending recognition of new rights or limiting the power of government to intervene in social issues. “Ickiness” isn’t a consideration – Kennedy in particular has ruled in favor of queers in important cases before.