Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktThe Ninth Circuit has come out with a ruling on the Prop 8 case. There were three issues before the Court: 1) do the Prop 8 proponents have standing?; 2) should Judge Walker’s decision be summarily dismissed because he is gay and has a long-time partner?; and 3) is Prop 8 constitutional?
The judges were unanimous on the first 2 points (standing, dismissal), ruling that the proponents had standing and denying summary dismissal. The 2-1 majority decided that Prop 8 was unconstitutional, but ruling only on Prop 8 in the narrow sense that it “stripped same sex couples of the ability they previously possessed” to marry under CA law (Equal Protection argument). They do not decide on the constitutionality of SSM.
For the SCOTUS nerds, the majority was written by Judge Reinhardt (Judge Hawkins concurring) and the dissent by Judge Randy Smith. I don’t have the exact stats, but I know that Judge Reinhardt is one of the, if not the, judge whose opinions are most frequently reversed by SCOTUS.
Filed under: gay marriage | Tagged: Ninth Circuit, Prop 8 |
All Things in Moderation 
So a Federal Court made a ruling on a California state law not based on whether or not it violated a constitutional right under the United States Constitution, but over whether it repealed a previous California state law?
So presumably any time California repeals a state law, any previous beneficiaries of that law have standing to sue in Federal Court? This has interesting implications for grandfather clauses, etc.
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jnc:
Well, to make it more convoluted, the Federal Appeals Court upheld a District Court ruling that a CA constitutional amendment (Prop 8) violates the US Constitution (14th Amendment) because it overturned a CA Supreme Court ruling that denying same-sex couples the right to marry was unconstitutional (CA constitution). Interestingly, the CA Supreme Court found that Prop 8 was constitutional, at least wrt to the CA constitution.
In the future, if the repeal of a CA state law specifically disadvantages a particular class of people for no other reason than to disadvantage that class of people, then I’d imagine that this ruling could be used for support.
I think Judge Reinhardt was unusually circumspect with his opinion so as not to get swatted down by the en banc Ninth or SCOTUS, depending on which route the Prop 8 proponents decide to take.
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Two Supreme Court cases out of Texas may bear upon the line of reasoning used by the 9thC. majority, as viewed by the Supremes.
1] Rodriguez v. San Antonio ISD ’71-’73.
At the end of 1971, a three judge federal panel in S.A. ruled that once the state had undertaken public education under its own constitution it had an equal protection burden to provide substantially equal schooling in rich and poor districts alike, under the 14th A. In 1973, the Supremes reversed, 5-4, saying it was a matter for interpretation of the Texas Costitution by the Texas Supreme Court, or for rectification, if any was desired, by the Lege. Under Rodriguez, I think a case based on the reasoning here can be summarily reversed.
2] Plyler v. Doe, ’82. Despite Rodriguez, the Supremes ruled that Texas could not allow school districts to charge out of district tuition to children who were illegal aliens. The distinctions drawn to the earlier case are mighty weak tea, IMO. The Court admitted in this case that illegal aliens are not even a suspect classification – that there is a state interest in classification.
“Despite the exclusive federal control of this Nation’s borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns. ”
Then the Court went on to say there was no evidence that charging out-of-district rates would deter illegal immigration, and skipped over the costing factor of educating a migrant population.
So Plyler could be used to argue for the affirmation of the 9th C. here.
Why these issues are related: both marriage and education are traditionally within the purview of the state and only invidious discrimination based on a suspect classification would get federal attention, because neither marriage nor education are spoken to by the federal constitution.
A third TX case, now: Definitionally, sexual orientation is not quite a suspect classification, but SDO’C, concurring, implied that it is, in another TX case, Lawrence, which set aside the TX statute making homosexual sodomy a crime, and I think Scalia agreed with her implication, but in dissent. Or else I heard Scalia make that point in a video lecture, wherein he said the case presaged constitutional support for gay marriage.
Hope that is all clear, now.
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Judge Reinhardt relied on Kennedy’s ’96 majority opinion in Romer v. Evans, I see from the case, which I could finally load. There, Col. voters passed a state constitutional amendment that prohibited treating homosexuals as a “protected class”.
The Colo. S.Ct. ruled it a 14th A. issue and on remand the trial court said what the CO. voters did could not pass strict scrutiny. Kennedy, leading a 6-3 Court, wrote that what the voters did could not pass the easiest test for the state – rational basis. Lawrence built on this, as I mentioned above.
There are some real differences between this case and R. v. E. But there are also similarities [voter referendum set aside].
Ultimately there will have to be a case that decides whether or not sexual orientation is a protected class. We de facto treat it as one for employment purposes but can use rational basis = the lowest standard for drawing legitimate distinctions. A gay bar can hire gay staff, for example, just as Hooters can hire…well, you get it.
So R v. E. and Lawrence have applied rational basis in this context without ever saying “protected class”. Reinhardt hopes the next level of appeal – en banc to the 9th or Supremes – cuts right to “no rational basis”, obviously.
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Let me use “Hooters” and “life insurance” as examples of the different classifications.
Race gets strict scrutiny. Thus Hooters’ cannot turn down a pretty black woman under forty with long legs, big hooters, a nice smile, and no disqualifying criminal background check, because the customers would prefer Anglo barmaids.
Gender gets intermediate scrutiny, so a sex based business catering to men can hire only pretty women under 40 with long legs and big hooters and a man can never expect to get a job at Hooters.
Rational basis scrutiny allows distinctions drawn on a rational basis – for example, old men pay more for life insurance than young men, based on actuarial tables. However, black men cannot be treated differently than white men of the same age, because race gets “strict scrutiny”. If your employment decision is rational based on actual performance/needs, we can uphold it, unless it is inextricably tied to race, religion, or national origin. But if you have no rational basis for excluding a group, we have trouble in court.
So even without a protected classification, a group can say it was discriminated against without a rational basis, and that is where this case is being argued.
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I just read the dissent. Smith, during orals, pretty much got the Prop 8 folks to admit that all they were objecting to was the term “marriage” b/c the fall back CA domestic partner law was substantively protective of all rights spousal and parental that a marriage confers. So I thought he was headed to “no rational basis”.
Instead, he found, as the CA Supremes did, no material change in the rights of the partners, but he also cited Baker, a case I did not know about, which is 40 years old, in which the Supremes denied review of a MN gay marriage case b/c there was no federal interest. Further, on rational basis testing, the Prop 8 folks don’t have to actually be right, they just have to think they have a rational basis – here, the state’s interest in getting hetero couples to marry, where it has no interest in getting ss couples to marry.
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Mark: why does the state have an interest in getting hetero couples to marry but not gays/lesbians? Why does the state have an interest at all?
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“Goose, this is not about what we think. It is about how little reason passes for a legislative rationale under the doctrine, as a result of separation of powers. If courts could throw out statutes that they simply find hard to fathom there would be much less legislation.
So the weak but rational purpose is that the state thinks the only relationships that result in kids are hetero, so the state has an interest in encouraging hetero marriage, and can be indifferent to ssm, so long as ss couples can have the legal trappings that equal marriage, if they want. Kinda a “no harm, no foul” corollary.
Remember, this is the dissent – but it lays out some grounds that the Supremes could buy.
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I think I’m gonna need to sit down and diagram this out in order to understand it, Mark! Lawyers definitely don’t think like the rest of us sometimes. . .
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I hope I can write more about the decision soon and raise some very deep questions about it, but let me just offer the suggestion that the overarching reason it all seems inscrutable and inaccessible is that is a state-of-the-art expression of judicial imperialism and social policy masquerading as law that long ago left behind any pretense of fidelity to the Constitution. It is a stunningly anti-republican act as well, and one of the better examples ever of successful judge shopping. Think about it: a few state court judges suddenly found a right to ssm where no one had ever imagined it invisibly lurked in a state constitution; people of the state rose up to say a resounding “No”; and now three federal judges say the people’s rebuke of their own state’s imperial judiciary somehow violates the US Constitution.
These are lawless judges. What they are doing has essentially nothing to do with the role of judges any longer. Normal people can’t follow their reasoning, because it isn’t really reasoning from anything in the Constitution at all. It is a set of ad hoc rationalizations to constitutionalize their own social and sexual views. Unfortunately, Justice Kennedy, joined by the then-sitting liberal bloc of SCOTUS, laid groundwork for this kind of decision, an the Constitution is almost irrelevant to what they are doing here. If you heard or read Justice Ginsburg’s recent comments scorning the Constitution as unfit for the 21st Century, you should understand that those weren’t idle words. They were revealing.
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Michi:
Lawyers definitely don’t think like the rest of us
I’m with you on that. Of course, we’re both biologists …
I find the dichotomy between the CA SC (Strauss) and Ninth Circuit (Perry) decisions fascinating. The CA SC takes an idea (that Prop 8 only takes away the designation “marriage” from same sex couples, but not any of their rights) and rules that Prop 8 is constitutional because no substantive legal rights are abridged. In contrast, the Ninth Circuit takes the exact same idea and rules that Prop 8 is unconstitutional because there is no rational basis for not letting same sex couples use the word “marriage.” More remarkable to me is that the CA SC has ruled (in re Marriage Cases) that gays and lesbians are a protected class, subject to strict scrutiny, whereas discrimination based on sexual orientation is subject only to rational basis review in federal court.
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