March 02, 2010

A third way for the Prop 8 case

Posted by: Chris

With all that's been written about the case brought by Ted Olson and David Boies challenging the constitution of Proposition 8, you would think that the outcome there will decide gay marriage nationwide. In fact, it well could, if the U.S. Supreme Court agrees that it's a violation of the Fourteenth Amendment guarantee of equal protection under the law to deny gay Americans the fundamental right of marriage to the person of their choice.

We're a long way from that day, obviously, with the matter still before (semi-closeted gay) Judge Vaughn Walker in the U.S. District Court in San Francisco. However Walker decides the case, it will be appealed as of right to a three-judge panel of the fairly predictably liberal 9th Circuit Court of Appeals, which could then decide to hear the case en banc (with all judges participating) if enough of them are unhappy with how the panel rules. Then comes the appeal to the Supreme Court, which will only hear it if a minimum of four justices want to.

One factor that may help determine whether the nation's high court gets this gay marriage case is how broadly Judge Walker rules, if he strikes down Proposition 8. If he issues a sweeping ruling that gay marriage violates the 14th Amendment and that's upheld in the 9th Circuit, then odds are very strong the Supremes will take the case.

But David Levine, a law professor at the University of California's Hastings College of Law, points out a third possibility:

If [Walker] writes a more boring factual opinion of the special situation California is in, that would have the least impact nationwide. That argument is that there’s no rational reason to have three categories of unions in the state: heterosexual married people, domestic partners and the 18,000 same-sex married couples who were married in California.

He could argue, what’s left that separates domestic partners and married couples in the state? If there’s no legal difference, then what is the rationale for saying there needs to be a distinct group?

Keep in mind that even with Prop 8 in place, gay couples in California can enter into domestic partnerships that carry all the rights and responsibilities of marriage except the name (and the automatic portability to other states and countries). Also, California presents the unique situation where gays could marry for eight months and remain married still. Proposition 8 allowed the voters to amend the state constitution to take away existing rights from a single class of people, making it much more like the notorious Amendment 2 in Colorado that was struck down by the U.S. Supreme Court in Romer vs. Evans in 1996.

Those unusual facts are very different than those presented by a gay couple in Georgia, for example, who could never marry in the years before the voters there amended the constitution to limit marriage to straight couples, and different also from gays in Maryland, for example, where the constitution is silent on the question and the state recognizes gay marriages from elsewhere.

Judges (and justices) often like to decide lawsuits on the narrowest possible ground, following the principle of judicial restraint and reducing the risk they'll get reversed or overturned down the road.

Given the strength of the presentations made at trial in the Prop 8 case, and the predilections of Judge Walker, I would be very surprised to see him choose this narrow, third way. The silver lining of such a narrow ruling, at least from some quarters, would be to stave off the day the Supremes get the gay marriage question, allowing for the possibility that President Obama might fill in some timely vacancies.

Tags: David Boies, David Levine, gay marriage, Judge Walker, Prop 8, Proposition 8, Ted Olson, Vaughn Walker