In a 2–1 decision issued this Tuesday, February 7, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit struck down California’s Proposition 8 (“Prop. 8”). Prop. 8, as readers may well know, is the initiative that amended the state’s constitution to reverse the California Supreme Court’s 2008 decision holding that the equal protection of the law required the State to allow gay, as well as heterosexual, marriage. As has been widely reported, the Proposition’s supporters consisted largely of religious lobbyists and other believers.
The Ninth Circuit decision is lengthy, and it includes far too many interesting issues to cover in any single column (or perhaps even any one book!), but several elements of the decision are worth a second look, as I’ll explain.
The Standing Issue, and the Problems the Initiative Process Raised
First, the three-judge Ninth Circuit panel addressed the question of who had standing to defend Prop. 8—which was passed into law by the “People of California” through the initiative process. Because the State had designated the supporters of an initiative as appropriate representatives to defend that initiative in court, those who had lobbied for the Proposition were permitted to do so.
If ever one might question the wisdom of these western-style direct-democracy systems, it was surely then. First, the state’s law had been amended through a secret vote of the people, who never had to explain to anyone why they voted the way they had. (Voters, of course, aren’t up for re-election, and have no obligation to disclose their votes or the reasons that lay behind them.) Then, when the time came to defend the initiative’s constitutionality under state or federal law, it was not the state or its offices, which are accountable to all the people, but rather the special interest groups, who were in the position to make arguments that could affect not just this case, but also all litigation involving state law.
Article IV of the U.S. Constitution promises that “The United States shall guarantee to every State in this Union a Republican Form of Government.” Arguably, California’s initiative process violates that promise, and ought to be eliminated or dramatically amended.
Sadly, though, the Supreme Court has held that this clause, which is known as the Guarantee Clause, is nonjusticiable. Thus, the courts—and even the Supreme Court—can do nothing at all about these secret decisions, made by unaccountable majorities composed of those who care enough to vote.
California’s process is a true perversion of the system that was envisioned by the Framers, and described in the Guarantee Clause. For those who are familiar with the failure of the Articles of Confederation to effect accountability on the part of the states, this situation ought to ring a very loud bell.
The Issue as to Whether Prop. 8 Had Any Legitimate Purpose, or Was Simply Driven by Animus
Second, the Ninth Circuit held that there was no legitimate purpose for the constitutional amendment effected by Prop. 8; rather, Prop. 8 was simply a product of animus toward a particular group.
The crux of the opinion was that Prop. 8 did not change the legal status of gay parents or gay partners, other than to take away from them—and them alone—a right they had previously enjoyed: the right to get married. The Ninth Circuit reasoned that if the actual purpose of Prop. 8 had been to promote “responsible procreation,” as the initiative sponsors claimed, then it would have removed not only gay persons’ capacity to be married, but also their rights to procreate, adopt, and parent. And of course, it did not reach that far.
Ultimately, the Ninth Circuit decided the issue in a way that is inextricably tied in with the actual laws and history of California regarding same-sex marriage. The court declined to reach the question whether homosexuals have a right to marriage under the Equal Protection Clause. What they—and all persons—definitely do have, however, is a right against arbitrary laws that are passed for no public purpose—as the Supreme Court made clear in Romer v. Evans. (In Romer, the Court found no rational basis to support an amendment to the Colorado State Constitution, passed by referendum, that had purported to forbid gays and lesbians within the state from being treated as a protected class for purposes of antidiscrimination law.)
As there was no public purpose underlying Prop. 8, other than the illegitimate purpose of depriving same-sex couples of the title of “marriage,” the court struck down the amendment.
The case will not result in an avalanche of gay weddings in California, because the stay that has been in place since early in the litigation will remain in place. Thus, the status quo will be maintained until the final court has spoken.
Why the U.S. Supreme Court Is Unlikely to Take This Case
There are two more levels of review available—en banc review (that is, review by a larger panel of the court) by the Ninth Circuit, and review by the U.S. Supreme Court. En banc review is certainly possible. But in my view, Supreme Court review is less so, for the case is so closely tied up with the facts and history of California’s law, its constitution, and its initiative procedures.
Frankly, if there were any issue worth the United States Supreme Court’s attention, it would be the deeply flawed processes of lawmaking now dominating much of California law. But as I noted above, the nonjusticiability of the Guarantee Clause likely forecloses that option. And for that reason, any change in California law regarding initiatives will have to come from California itself.
It stuns me that a law professor would use this phrase:
unaccountable majorities.
Especially after an unaccountable majority elected Barack Obama ;)
What about polygamy? Aren’t the rights of polygamists protected under the Equal Protection Clause?