Will the Supreme Court Hear Prop 8 Challenges and How Will Kennedy Rule if It Does?

When the Ninth Circuit Court of Appeals issued its ruling on Proposition 8, defenders of the ban on gay marriage were quick to point out that the Ninth Circuit has a history of liberal opinions that have been overturned on further appeal and that this simply marks the latest one.

However, the argument that the Ninth Circuit is the most overturned federal appellate court is actually more statistical artifact than premise based on any higher frequency of overturned decisions.  The fact is, the Ninth Circuit court represents more states than other courts and handles a higher case load.  Statistically speaking, the overturn rate is in line with other courts.

Moreover, most legal experts are unsure about whether Prop 8 will even be heard by the Supreme Court, let alone overturned.

One reason for that is the narrow basis on which Judge Stephen Reinhardt invalidated the statute, based on the violation of the Equal Protection clause and the fact that the measure “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 decidedly did not rule on the broader question of whether, in general, a ban on gay marriage would be unconstitutional.  Such a question would have implications for other states.

Instead, Judge Reinhardt writes: “This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.”

Professor Jane Schacter of Stanford Law School argued that the question as to whether the Supreme Court will agree to hear this matter is guesswork.  She cites the limited basis for the opinion, arguing, “It’s much more grounded in the specifics of the California ruling.”

Unlike other states, California has granted all rights to same-sex couple it grants to married couples – everything, that is, except the label which is the entire basis for this fight.

Professor Schacter argues that because of these narrow facts of the California decision, the “Supreme Court may feel the stakes are limited, and it’s not as necessary for them to get involved.”

She further notes that decision was written with one particular justice in mind – the swing justice.  “This decision was written by Judge Reinhardt more or less for Justice Kennedy,” Professor Schacter said.

Other professors, quoted in various media accounts, agree.

“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,” University of Michigan law school professor Steve Sanders said in a Huffington Post article. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.”

Justice Anthony Kennedy tends to represent the deciding vote on major issues of a steeply-divided court.  He has generally swung to the right, swinging the court with him.  However, as the LA Times notes, “On gay rights, Kennedy has been anything but a ‘culture wars’ conservative.”

“He is a California establishment Republican with moderately libertarian instincts,” Stanford University law professor Pamela Karlan said of Kennedy, the LA Times reports. “He travels in circles where he has met and likes lots of gay people.”

“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,” Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles said in the same Huffington Post. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same-sex couples.”

“The opinion holds that Prop. 8 was unconstitutional only in a case where the state had already granted full legal rights to same-sex couples,” University of Minnesota law school professor Dale Carpenter told the Los Angeles Times last week.

The decision “is specifically looking at the role of Proposition 8 in the California context,” said Santa Clara University law professor Margaret M. Russell in the same LA Times article. “Because it is limited to California, the Supreme Court may not be as concerned about reviewing it as it would a ruling that would have affected the entire country, she said,” the paper added.

According to the LA Times, “Douglas NeJaime, a Loyola Law School professor of sexual orientation law, agreed that the ruling was written for Kennedy, but suggested that if the Supreme Court did take up the case, Kennedy could side with the four liberal justices to ‘find Proposition 8 unconstitutional without having to significantly expand their jurisprudence’ — meaning that it wouldn’t have any effect on other states’ gay marriage bans.”

The fact is that nobody knows for sure if the Supreme Court will take up the case, or how Justice Kennedy would ultimately rule.

Even the two lawyers who argued against Proposition 8 seem split as to the likelihood that the Supreme Court will ultimately take up the case.

In a media conference call, David Boies co-counsel for the coalition fighting Proposition 8, argued, “The grounds for the opinion, I think, do make it somewhat less likely that the Supreme Court will take it.”

“The Court might not want to try to take this issue on on those facts, and might want to wait for a case on a more general issue that the court here did not have to face,” Boies said. Though he would later argue, “The reasoning of the case is reasoning that would clearly support a national right to marriage equality.”

Ted Olson, co-counsel with Mr. Boies, believes that the court might not be able to resist.

He notes that Judge Reinhart wrote: “Proposition 8 operates with no apparent purpose but to impost on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status.”

“That language resoundingly reflect the arguments that we were making that this is discrimination that takes away a fundamental right and takes away equal protection,” Mr. Olson said. “In that sense, it’s a very broad and significant and resounding opinion.”

Erwin Chemerinsky, Dean of the UC Irvine School of Law, wrote this weekend in the LA Times, “If the Supreme Court considers Prop. 8, it’s likely to affirm Tuesday’s 9th Circuit ruling.”

His view, once again, comes down to a reading of Anthony Kennedy.

“Everyone on both sides of the issue expects that it will be a 5-4 decision with Justice Anthony Kennedy in the majority,” the Dean argues.  “In predicting his vote, it must be remembered that there have been two Supreme Court cases in history advancing rights for gays and lesbians; both were written by Kennedy. And both emphasized the absence of a legitimate government purpose for discriminating based on sexual orientation.”

Dean Chemerinsky therefore concludes, “From these opinions, it is easy to see him coming to exactly the same conclusion as the 9th Circuit: There is no legitimate interest served by rescinding the right to marriage equality in California.”

Dale Carpenter, a professor at the University of Minnesota Law School, believes the inconsistencies between the language of Proposition 8 and the rest of California law ultimately doom it.

“Proposition 8 is a law in search of a reason. What is the purpose of denying the use of one word – ‘marriage’ – to a class of people deemed by the state itself fully capable of taking on all of the child-raising and other responsibilities associated with the word?” he asks.

“As the 9th Circuit panel conceded, the initiative did not deny homosexuals legal protection across the board. Unlike the blunderbuss Amendment 2, Proposition 8 used what the opinion aptly called ‘surgical precision’ to remove the title of marriage from otherwise fully protected relationships. In other words, the court seemed to argue, Proposition 8 violated the principle of Romer because it was at once too narrow and too narrow,” he notes, referencing the 1996 Romer v. Evans decision in which the court in a 6-3 decision written by Anthony Kennedy, “held Colorado’s Amendment 2 unconstitutional, in part, because it was ‘at once too narrow and too broad,’ identifying ‘persons by a single trait and then denying them protection across the board.’ “

Professor Carpenter continues: “Nevertheless, the root question will be why the window was closed at all. Romer makes clear that it is not constitutionally acceptable to disadvantage a class of persons simply to express animosity toward them. But Proposition 8’s proponents certainly did not agree that the initiative was motivated by dislike of gay people. And though anti-gay arguments were made in high-profile campaign ads, it would be difficult to know what really motivated 7 million people to vote as they did.”

“The sorry history of this country’s legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people” he continues.

“So what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence. Despite what some critics last week charged, to challenge the sufficiency of the reasons offered for Proposition 8 is not to indict traditional marriage itself as bigoted and irrational. There are many rational, indeed compelling, reasons to support marriage between one man and one woman. Among others, getting heterosexuals to take responsibility for the children they conceive is a powerful reason to encourage them to marry,” Professor Carpenter argues.

He concludes, “But encouraging heterosexuals to take seriously their familial obligations is no reason by itself to deny same-sex couples the full social and legal incentive to settle down. And to confer parental rights, marital rights and marital obligations on same-sex couples without giving them ‘marriage,’ Proposition 8’s proponents must more convincingly answer one question.  Why?”

Finally, Harvard law professor Michael Klarman concludes, as we do, that gay marriage is inevitable.

“As recently as seven or eight years ago, there might not have been a single justice prepared to declare a federal constitutional right to same-sex marriage. Opinion polls then showed that Americans opposed gay marriage by a 2-1 margin,” he notes in an LA Times article.

“The situation has since changed dramatically. Opinion polls now consistently show that a slender majority of Americans support gay marriage. State supreme courts in California, Connecticut and Iowa have ruled in its favor, and legislatures in five states have enacted gay-marriage statutes. If liberal judges on state supreme courts now regularly support gay marriage, liberal justices on the U.S. Supreme Court are likely to do so as well,” he argues.

Mr. Klarman cites the two factors that we have often cited – a greater frequency of people knowing someone who is gay and the fact that young people are so strongly in support of it, in part because of how many have friends and family members who are gay.  For the younger generation, fear of gay people is almost entirely gone.

“The trend in favor of gay marriage has accelerated dramatically in the last three years. Before 2009, the annual rate of increase in support for gay marriage was about 1.5 percentage points, but since then it has been closer to 4 percentage points. Statistical models predict that in another dozen years, every state will have a majority in favor of gay marriage,” he writes.

He adds, “In recent years, many conservatives have begun to acknowledge the inevitability of gay marriage, even as they continue to strongly oppose it.”

He cites Albert Mohler, president of the Southern Baptist Theological Seminary, who said in March of 2011 on a Christian radio program that “it is clear that something like same-sex marriage…is going to become normalized, legalized and recognized in the culture.”

“It’s time,” Mr. Mohler continued, “for Christians to start thinking about how we’re going to deal with that.

Mr. Klarman concluded: “Although the ultimate outcome of the contest over gay marriage no longer seems in doubt, plenty of fighting remains until that battle is over.”

—David M. Greenwald reporting

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