A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.
A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.
It’ll be interesting to see how this progresses from here (and it’s an election year, yay!). A majority of Americans now support same-sex marriage rights. Marriage equality has moved incredibly quickly — what was a divisive wedge issue only a few years ago now seems like a foregone conclusion. I suspect that if the GOP decides to hammer the “OMG TEH GAYS!” issue this year, it’s going to backfire, because American voters want to talk about jobs and the economy, and are significantly less interested in scapegoating gay people than we were six or even four years ago.
Marriage has also been held by the Supreme Court to be a fundamental right — the most famous case is Loving v. Virginia, which invalidated anti-miscegenation statutes, but the Court has ruled on marriage many times over and has rarely found reason to restrict consenting adults from marrying each other. There also aren’t a whole lot of compelling arguments against same-sex marriage — it hasn’t been found to be harmful to anyone, whereas blocking partners from getting married can cause actual harm to the individuals and their children. Without putting forth a legitimate reason to restrict marriage to opposite-sex couples, the anti-equality people are at a real disadvantage.
There’s little doubt that the pro-Prop-8 folks will appeal this ruling to the Supreme Court. And a lot of us on the pro-marriage-equality side are nervous about that; we know that the conservative justices are guaranteed “it’s constitutional” votes, but the liberal justices and moderate justices are less of a guarantee. My prediction, though? If the Supreme Court rules on this, the judges are going to be facing strong legal precedent in favor of marriage equality, coupled with a rapidly-shifting social consensus that has situated gay rights as “the new civil rights” (and yes I find that characterization squicky for a lot of reasons, but I think it’s fair to say that’s going to be the perception of the more moderate justices). Given the lack of good legal reasoning to deny marriage equality, and given the justice’s sense of themselves as history-makers, I think the moderates are going to look around and say, “I really don’t want to be on the wrong side of history on this one.” Especially given the fact that Kenny wrote the majority opinion in Lawrence v. Texas, the case that overturned a Texas law outlawing homosexual “sodomy”? I think he’ll see the shifting tides and get himself firmly onto Team Gay. The most optimistic part of me thinks that Roberts will do the same (something that literally no one else I have ever met agrees with, but).
Obviously there is quite a bit at stake here. If the court rules that Prop 8 is Constitutional, the marriage equality movement will be set back decades. That is understandably terrifying. But I’m feeling optimistic. Cautiously optimistic, sure. But optimistic.
This is wonderful news, which I will try to enjoy right now without worrying too much about what will eventually happen in the
Supreme Court.
Count me among the court watchers who think there is zero chance to a crack in the four-justice bigot bloc. Roberts is down with Scalia, Alito and Thomas on this for sure. There is likewise no doubt that the three women and Breyer are for equality. Kennedy is the conservative who looks to the rest of the world and to history. His principal concern is for his legacy, and his most consistent and significant break with conservatism has been his willingness to acknowledge GLBT civil rights — he’s the author not only of Lawrence, but also Romer, which struck Colorado’s Prop 2, that limited municipalities’ ability to define their own GLBT antidiscrimination protections. My prediction: Kennedy has been a sure vote for equality since before Prop 8 was voted on. He will never allow himself to be discussed by future law students as the tragic justice who couldn’t get past his own prejudice to do what was obviously in hindsight the right thing. He won’t be Powell, who went the wrong way on Bowers v. Hardwick, the 1986 decision that was reversed by Lawrence.
The nighmare scenario is that, if Obama loses, one of the four in the equality bloc could step down and be replaced by an Alito clone, creating a solid five votes both to stop marriage equality and end Roe.
This may or may not go en banc, which means all the judges of the 9th Circuit would hear it; the only effect of that in my view would be to extend the timeline. They’re not going to reverse it and nothing they say would change any Justice’s mind.
However, would the case die as moot if Prop 8 were reversed by ballot initiative? That might be conservatives’ best hope, as it would confine their losses to the Northeast, the West Coast and Iowa for the time being. If they lose at the Supreme Court, while in theory it could be narrow in some way, in practice it’s the death knell for bans on same sex marriage, and equality will spread quickly. If California moots this by ballot initiative, then the Gulf Coast states might hold out for a decade or more.
Donna, are you really worried that Kennedy is going the wrong way? I’m not. I think he can’t stand the idea that he’ll be on the wrong side of history.
Legalizing same-sex marriage is so last June. Get with the program, California.
Seriously, though, I’d also pay attention to what’s going on in Jersey right now (my home state). Marriage equality is, in fact, again being used as a wedge-issue, but now the shoe is on the other foot. The Democratic-controlled senate is using it to essentially paint the Republican governor as outside the mainstream of the state (which polls show support SSM) and have made it their first order of business for the new session. I wonder if we’ll see more of this, as the election approaches: Democratic politicians using SSM to solidify their position much like the Republicans did, on the other side, in 2004.
I’m worried about Kennedy. And I gotta say, Roberts supporting the overturning of Prop 8 is a long shot.
How soon can this case be heard by SCOTUS–is their docket already full for this year?
Robotile, it may go up en banc, and the petition will take time to resolve. I’m not a Supreme Court procedure maven, so I don’t know what that does to timing.
So can gay couples start getting married in California again now, or do they have to wait for the Supreme Court?
At the risk of going a bit off-topic: why do you find the characterization of gay rights as “the new civil rights” squicky? I’m curious.
I personally don’t think they’re analogous, since it is possible (though certainly not at all preferable) to hide one’s sexual orientation. There’s no race closet, as it were.
robotile: The Court would not, in the ordinary course of things, decide this term any case just being appealed now. The only way it could come up this term would be for the Justices to expedite it. Since they don’t actually enjoy inserting themselves into the middle of election campaigns, that’s not likely.
There is also a pretty clear path open to Kennedy (and the liberals) to invalidating Prop. 8 while not actually recognizing a constitutional right to same-sex marriage. It would basically rely on the “taking it back” feature of Prop. 8, and would be justified by a similar gay rights case decided in 1996, Romer v. Evans. This might be an attractive option to the Justices, because it would allow time for more States to enact same-sex marriage laws, so that SCOTUS could later come in and “clean up” the dead-enders, as it did with anti-miscegenation laws in Loving.
I would predict that the Court is somewhat more likely to strike down Prop. 8 on a narrower, Romer theory than it is to recognize a constitutional right to same-sex marriage. Call it 65 Romer, 30 fundamental right, 5 uphold Prop 8. If Kennedy and the liberals do go the fundamental right route, I could definitely see Roberts concurring on the narrower, Romer theory, sort of like he did in the juvenile life without parole case.
Well, a lot of reasons, but mostly because I think there’s this weird tendency on behalf of every social justice movement to compare itself to the civil rights movement, which implies that the civil rights movement was 100% successful. That in turn implies not just that racism isn’t an issue any more but that there aren’t still very real racialized legal oppressions happening in this country. So it’s a combination of Oppression Olympics + whitewashing the reality of racism in America.
“I personally don’t think they’re analogous, since it is possible (though certainly not at all preferable) to hide one’s sexual orientation. There’s no race closet, as it were.”
Well, there is a religion closet. “Oh, you don’t look Jewish!” And it can be very hard to tell a Mormon from a Southrn Baptist by appearance.
And it is generally accpeted that religious affiliation is not a basis for denying adherents any civil right that the general population has. Although I confess ot having toyed with the idea of barring cettain groups from federal office this election cycle. But I know better.
Washington State is geting ready to pass marriage equality, It has been approved by our Senate and has cleared committee in the House. Gregoire has said she will sign it as soon as she sees it. It has a good chance of passing the house too. It was religious conservatives in the Senate who were the deciding votes, and they said they voted their consciences. There really is hope.
Then it goes on hold until the cut-off date for collecting signatures for a voter intiative. If the opponents fail to get the required number, the law goes into effect. If they get the signatures, it goes to the general election, where it will very likely get voted down. That will pretty much discredit opposition here at least.
We could just call them gay civil rights, instead of gay rights, for the squeamish of conscience. Because, that’s what they are. Sigh.
I personally don’t think they’re analogous, since it is possible (though certainly not at all preferable) to hide one’s sexual orientation. There’s no race closet, as it were.
That’s a little too facile an argument to make. The existence of a “race closet” issue depends on the racism in question and individuals in particular — sometimes, people can pass as the ‘acceptable’ race. It’s not an issue now in the US, but one hundred years ago, there was racism against people of Irish or Jewish ethnicity, for example, which is usually not something you can tell just by looking. And the Lovings (of Loving v. Virginia) lived in a community where many legally-Black individuals could pass as white elsewhere. Race, the partially-invented category that it is, is not always synonymous with skin color.
As for the sexual orientation closet… well, a lot of anti-gay folks conflate sexual orientation with gender identity. And a transgendered person who can is living as their identified sex (possibly with the aid of modern medicine) can be closeted about their trans-ness… and still get outed. By the TSA, if nothing else.
All of this is not to say that the modern gay rights movement is the same as The Civil Rights Movement — it is different, and yes, some of that is because _most_ of the marginalized people in the CRM case could not hide that they belonged to a category that society and law treated as second-class. And Jill’s absolutely right that referring to gay rights issues as “the new civil rights movement” suggests that the one from the 1960s is done and racism is over.
But the rights to fair housing and employment, marriage equality, and not being murdered because you are LGBT and having the jury let the killer off with a slap on the wrist… those _are_ civil rights by definition.
I have seen the future, and the future is Kennedy’s Ratchet.
“And Jill’s absolutely right that referring to gay rights issues as “the new civil rights movement” suggests that the one from the 1960s is done and racism is over.”
this is an important point and it stands on it’s own. It is certainly very common to hear people insisting all that bad stuff is in the past, nothing to see here, move along.
But Qgrrl makes a related point
“We could just call them gay civil rights, instead of gay rights, for the squeamish of conscience. Because, that’s what they are. Sigh.”
This is not the new civil rights. This is just civil rights. More civl rights if you like, but not really. Just full civil rights for people hwho have been denied certain rights.
As I mentioned above, the issue is coming to a head here in Washington. We have a preacher of a suburban megachurch, Reverend Hutcherson, who is sticking his nose into it. He says he is offended as a black man that gays and lesbians are being put on a level with black people when it comes to struggling for civil rights. Too bad he doesn’t have the moral sense to say that he is ashamed as a Christian of his own heretical teaching of Leviticus as if it were Christian doctrine. And by the way, it is not a black church and he gets no backing or agreement that I can see from any of the black churches around here.
Oh I have no objection to calling them “civil rights.” They are civil rights. I have an issue with the media describing the movement for marriage equality as “the new Civil Rights” movement, where in U.S. society the term “civil rights movement” is short-hand for “the movement for civil rights for black people.”
I was initially very excited about this case, but it ended up being decided on very narrow grounds, focusing on the fact that California HAD gay marriage and then rescinded the right. It says nothing about the (majority of) states that have never extended the right in the first place. It ONLY applies to California, not even the other states in the 9th Circuit. The dicta about equal rights is great, but not controlling. The 9th Circuit went a middle road, which is great for California, but not so helpful anywhere else. The other nice thing about this case is the recognition that gayness was not a reason for Judge Walker to recuse himself, aka a recognition that one does not need to a white man to be unbiased.
The flip side of this means that SCOTUS is less likely to take the case (and potentially overturn it). If the decision is only binding on California and only on the narrow grounds of a rescinded right, the Court has less reason to take the case, and if they did, it’s less likely to be overturned. My guess would be that the court would follow the 9th Circuit’s (narrow) ruling rather than expand it on a more general basis.
As far as mootness goes, a rescission of the law might make SCOTUS less likely to take it, but the Court gets around the issue when it wants to. Also, voluntary cessation is typically not grounds for mootness as the defendant could just resume whatever bad conduct it was doing in the first place. Cases that can repeat themselves can also be heard, even if the particular incident is over (i.e. Roe v. Wade, as she wasn’t pregnant when the case was heard).
I’m excited, but disappointed. I’m not surprised at all that the 9th Circuit upheld the decision (the original opinion was very fact-finding heavy and an appellate court has limited review over findings of fact) but I wish it had gone further. Quite frankly, I’m more interested right now in the pending DOMA litigation (Windsor v. U.S.), which might actually be better overall for advancing LGBT rights.
I wish the haters saw it that way, re: civil rights. Here in NC we’ve got our amendment vote in May. There is a great outpouring of support, but I’m not sure it’s enough.
Delaware managed to pass a civil unions bill with little argument, but an actual full on equal marriage bill? I bet that would bring hell to my tiny state.
I was very excited by this news, as someone who devoted a lot of time and energy to the No on 8 campaign in 2008 only to be sorely disappointed by the outcome at the polls. Civil rights should not be determined by the opinion of the majority.