Will the US Supreme Court find that Proposition 8's amendment is unconstitutional?

November 6, 2008 6:06 AM

Will the California Constitution be found to violate the US Constitution?

Here's what I know: Proposition 8 altered the California Constitution so as to define marriage in such a way as to exclude homosexuals from that institution. The last state that tried to alter its constitution in a manner detrimental to homosexuals was Colorado. Their constitution was successfully challenged in Romer v. Evans, using the 'rational basis' and 'legitimate state interest' standard and arguing that the passage of this amendment came from the 'bare... desire to harm.' Yet the Colorado amendment was a tricky kind of prohibition of prohibitions, designed to prevent protection for a group. As such, it is perhaps more egregious in the Court's eyes than Proposition 8.

After O'Connor's concurrence in Lawrence v. Texas, there is some reason to believe that it is a violation of the equal protection clause to single out homosexuals for doing things essential to their sexual identity. But that case was about criminalizing sodomy, and now we're talking about something else that might be essential to a person's sexual identity: marrying the person she loves.

Here's what I want to know: I'm looking for legally-educated opinions on this one specific question: will the US Supreme Court find that Proposition 8's amendment is unconstitutional? If so, what argument will they use to accomplish it? If not, what is the legal reasoning or combination of concurring justices that will lead to their decision?

Here's my caveat: This question is -not- an attempt to start a conversation. If I wanted to chat about the election, I would have jumped into one of the half-dozen threads where it is currently being discussed. I'm not interested in hypothetical Obama nominations or in lambasting the current members of the Supreme Court.

posted by anotherpanacea to law & government (24 comments total)

Well, here's how I see it.

1- Clearly, there will be lawsuits. There will be a couple of lawsuits challenging whether it was legally placed on the ballot. They will surely fail.

2- Following that, since it is part of the California constitution, that means it is by definition constitutional in CA.

3- So, any lawsuits will have to be federal.

4- Those suits will go to the Supreme Court.

5- The Supreme Court has a way of "getting out" of difficult decisions. If there is any legal messiness in the runup to the SC, they just send it back down, or defer to hear it.

6- Eventually, there will be a suit that makes it up, on the actual issue.

7- The Supreme Court WILL decide that it is unconsitiutional to not let some citizens marry.

The only thing that can stop that is a US Constitutional Amendment. If one of those passes, there is NOTHING that can be done, short of passing another one that nulls the first one.
posted by gjc at 6:23 AM on November 6, 2008

7- The Supreme Court WILL decide that it is unconsitiutional to not let some citizens marry.

How will they accomplish this? What's the argument for unconstitutionality?
posted by anotherpanacea at 6:26 AM on November 6, 2008

What's the argument for unconstitutionality?

Text from Section 1 of the 14th Amendment: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
posted by JustKeepSwimming at 6:36 AM on November 6, 2008

One problem I have with most arguments regarding this issue is that people mistakenly refer to same-sex marriage as "gay marriage," which really muddies the waters. Marriage is not inherently sexual, and the standard rebuff is that all people, regardless of orientation, have the right to marry someone of the opposite sex.

I really think that to gain traction on a legal, technical level, it needs to be approached from a sexual discrimination stance. If a man has the right to marry a woman, then a woman should have the right to marry a woman, and so forth for men marrying men. That is the right that's currently being impinged, not the right for homosexuals to marry.

Unfortunately, while "separate but equal" is often struck down, certain discriminations between the sexes are legal, and the court could decide that this is one of them.

It's important, in any case, for people to understand that while a same-sex marriage ban is effectively discriminating against homosexuals, it is not literally doing so, and it can be shown that they have the same rights as heterosexuals, even if heterosexuals enjoy the right to marry one of the opposite sex more than homosexuals do. Marriage needs to be un-coupled from sex, as there are many reasons to marry another (of the same, or opposite sex) besides sexual pleasure or function.
posted by explosion at 6:42 AM on November 6, 2008 [6 favorites has favorites]

Yeah, points 1-6 are pretty uncontroversial. If SCOTUS can avoid an issue like this, they probably will, and though there are likely to be dozens of cases which never even make it past the District Court level, someone will eventually get the standing issue right. But point 7 is not nearly so clear. The Court has, historically, been somewhat unwilling to expand the "protected classes" in the Fourteenth Amendment, and neither gender nor sexuality nor sexual orientation is a protected class in the constitutional text. Gender is a "suspect category," but not the way race is.

The argument that Proposition 8 is unconstitutional would have to do with the "constitutional penumbra," i.e. what certain justices think about what the Constitution "really means". This is how, for example, we got the Bivens action, an entirely new cause of action which permits individuals to sue for monetary damages on the basis of constitutional violations per se, without any further cognizable injury. The Warren court was notorious for expanding the rights the Court was willing to recognize, but this has been anything but uncontroversial. This, by the way, is how we got Roe. Given today's court makeup, I'd be very, very surprised if more than one or two justices were willing to throw their weight behind such a radical expansion of constitutional law. You could probably get Ginsburg and Stevens, but Roberts, Scalia, Thomas, Alito, Kennedy, and probably Souter and Breyer, won't go for it.

The long and short of it is that unless Obama gets at least two or three Supreme Court appointees, this isn't going anywhere.
posted by valkyryn at 6:45 AM on November 6, 2008 [1 favorite has favorites]

Your facts are incorrect in part.

Many states have amended their Constitutions subsequent to Roemer v. Evans to prohibit gay marriage.

The gay marriage movement's legal strategy thus far has been not to challenge these amendments on U.S. Constitutional grounds -- either on a Roemer basis, a Lawrence basis, or some combination of the two, but rather to focus on getting state high courts to recognize state constitutional rights, and on winning state elections to protect or expand those judicial gains.

This has been a sound strategy, because it is by no means certain that the Supreme Court would give the decision they seek.

The law which was struck down in Roemer was far broader than Proposition 8 or similar measures, as it purported to deny gays the right to seek any form of protection or benefit as a class from the government. The Roemer decision compelled no specific protection or benefit but said that gays (and, really, everyone and anyone) should always have the right to ask for protections or benefits from the democratic process.

Lawrence did compel a specific protection, but the Supreme Court can and does draw lines on its social-policy jurisprudence. The substitution of Justice Alito for Justice O'Connor does not give particular reason for optimism that the current Supreme Court would choose to draw the line as far out as marriage.

However, it's important to recognize that Proposition 8 barely passed, and would have failed under ordinary turnout conditions. The passing margins have been steadily declining nationwide as well. The Obama administration-to-come is obviously supportive of gay marriage being legal (even if Obama can't quite bring himself to say so), and I'd say at this point that the vast majority of Democrats in Congress, and not a small number of Republicans as well, are prepared to to take incremental steps towards federal recognition of state gay marriages. All in all, it's quite reasonable to suppose that politics will dispose of the opposition to gay marriage before the courts.
posted by MattD at 7:03 AM on November 6, 2008 [1 favorite has favorites]

I'm seriously doubt gjc's #7 under this court, but yes the court should eventually achieve the composition needed for #7, and the court may avoid ruling on the issue before that time. I imagine that California will nuke that amendment itself well before the court does.

Otoh, Florida has passed an amendment banning issuing or recognizing homosexual marriages & civil unions. I imagine this will fall under the full faith & credit clause, but that won't force Florida to grant same sex unions.
posted by jeffburdges at 7:05 AM on November 6, 2008

If a man has the right to marry a woman, then a woman should have the right to marry a woman, and so forth for men marrying men.

Does a man have a right to marry more than one woman or to marry a cat?

That's the way this argument usually goes, with the god fearing folk reacting in horror to an answer of yes, while bitching about government being too obstructive.
posted by Brandon Blatcher at 7:13 AM on November 6, 2008

IANAL, but if nothing else strikes down Prop 8 and the other "gay marriage bans", eventually the Full Faith and Credit Clause will come into play. DOMA is actually discussed in this context in the wikipedia article; it's weird to agree with Scalia, but his legal reasoning is sound.
posted by immlass at 7:17 AM on November 6, 2008

You may be interested to know that the ACLU and Lambda Legal are starting by challenging the amendment in the state courts. They claim that an amendment such as this one must be approved by the legislature first. We'll see.
posted by grouse at 7:41 AM on November 6, 2008

I have to agree with explosion here. Homosexuals, today, have exactly the same rights that straight people do, they just don't like them quite as much. There's really just no arguing this point.

This is especially true if you take a less black-and-white view of sexuality. You say "a homosexual man can't marry the man that he loves." Well, a straight man can't marry the man that he loves, either. That there are more homosexual men hoping to marry other men than straight men is really, from a legal standpoint, immaterial

The problem is pretty clearly that women and men do not enjoy the same rights in this regard. It also seems, at least to me, that the Supreme Court would be much more likely to come down on the side of same-sex marriage on the basis of discrimination against an already-existing protected class than adding a new protected class, if for no other reason than because it provides fewer opportunities for "untended consequences."
posted by toomuchpete at 7:46 AM on November 6, 2008

To expand a bit on the earlier comments about the 14th Amendment:
You asked what rationales the Supreme Court might use to strike down the new California Amendment, and generally speaking there are two: equal protection and substantive due process. Both of these come from the first section of the 14th amendment, quoted upthread by JustKeepSwimming. The privileges and immunities clause, also quoted there is unfortunately a dead clause and hasn't been used since shortly after the 14th amendment was itself passed.

The Equal Protection attack would require that the Justices either determine that homosexuality is a suspect classification, as race is, and thus require the justices to look at the California constitution under the strictest scrutiny. This would require the State to show a compelling state interest in the denial of marriage to homosexuals. This is a very high bar which would almost certainly not be reached. The problem with this attack is that with the exception of a dissent by Justice Brennan in one case, no justice has even suggested that sexual orientation is a suspect classification under the equal protection clause. The State in that case would only have to show that the State had a rational basis for its actions, which is the sort of burden that California would not have a hard time overcoming.

The due process attack would depend on how the justices chose to characterize the right being sought, and how the justices decide to interpret that right. The right can be characterized either narrowly or broadly, and the right can be viewed in terms of history and tradition of rights, or from the point of view of the decisional autonomy of the plaintiff. The bredth of the right is what came into play in Bowers v. Hardwick and Lawrence v. Texas (first upholding bans on sodomy, then overturning those bans). The justices will ask whether the right in question is the narrow right to (in this case) engage in sodomy, or is it the much broader right to be secure in the private actions in one owns private home. This same sort of dichotomy can be made in the case of homosexual marriage.

In the same way, the justices will have to decide whether they judge this right (either narrow or broad) by the tenets of history and tradition (a fundamental right central to the historical concept of ordered liberty) or by those of decisional autonomy (which is more likely to view history and tradition as a way of stagnating rights and enshrining prejudices and looks instead to the modern day's understanding of fundamental liberties).

Clearly, the due process attack would have a much better chance of succeeding if the justices in the case took a broad view of the right, and analyzed it under a decisional autonomy standard.

Well, hey, you asked... and I liked constitutional law.
posted by Inkoate at 7:57 AM on November 6, 2008 [1 favorite has favorites]

You do have one thing incorrect here, in that you assume the US Supreme Court would be forced to take the case at all if it was brought federally. If the case was pristine legally and had everything it needed to be looked at by SCOTUS, the Supeme court is still under no obligation whatsoever to grant a Writ of Certiorari (meaning that they accept to take the case).

There have been plenty of cases which could have been used to strike down similar laws in states prohibiting or banning same sex marriage. If the Supreme Court hasn't taken one yet I doubt they will want to with California's. It's controversial and they have no incentive to get involved at the moment.

IANAL, but IAALS.
posted by shadowfelldown at 8:04 AM on November 6, 2008

Every attempt to use the 14th Amendment to argue in favor of gay marriage has failed in the courts. That's why proponents of gay marriage in court have been relying on state constitutions instead of the US constitution.

If there were a 14th Amendment argument in this case, don't you think it would have been used to shoot down the "Defense of Marriage Act of 1996"?

will the US Supreme Court find that Proposition 8's amendment is unconstitutional?

My opinion is that the most likely result is that the federal courts will decline to hear such a challenge entirely, on the grounds that they lack jurisdiction.
posted by Class Goat at 8:17 AM on November 6, 2008

The Equal Protection attack would require that the Justices either determine that homosexuality is a suspect classification, as race is, and thus require the justices to look at the California constitution under the strictest scrutiny.

The bredth of the right is what came into play in Bowers v. Hardwick and Lawrence v. Texas (first upholding bans on sodomy, then overturning those bans).

Err.. have you read Lawrence? O'Connor's opinion argues for overturning the ban on Equal Protection grounds without suspect class attribution, and that's narrower than granting a right, so that's the holding. Romer (one 'e') was decided on rational basis review, but may not be relevant here as MattD points out.

BTW, if there's something out there on the internet that would help me figure out what will happen and why, I'd love a link. My google-fu has turned up almost no discussion of this issue, perhaps because results are clogged by electioneering.
posted by anotherpanacea at 8:18 AM on November 6, 2008

Er, yes, O'Conner's concurring opinion does base the result in Lawrence on Equal Protection, but she's writing a concurrance... Kennedy's majority opinion is what I was referring to above. O'Conner's concurrance isn't the holding of the court just because she relied on narrower grounds... Kennedy had 5 votes even without her, so his opinion is the holding of the court.
posted by Inkoate at 8:39 AM on November 6, 2008

d'oh! I can't count to five.
posted by anotherpanacea at 8:48 AM on November 6, 2008

It's cool! O'Conner concurrance IS an interesting application of equal protection in homosexuality cases... it's just not law, sadly.
posted by Inkoate at 8:55 AM on November 6, 2008

I don't understand why this isn't a sex issue rather than an orientation issue.

If a man can't marry a man because he's a man, then that's sexism. Got nothing to do with orientation. Denying rights based on sex is a clear no no, yes?
posted by ewkpates at 9:41 AM on November 6, 2008

If a man can't marry a man because he's a man, then that's sexism. Got nothing to do with orientation. Denying rights based on sex is a clear no no, yes?

Not nearly the legal student others here are, but as I understand it, this is the crux of the decision in Massachusetts: If the state confers specific benefits on a man and woman who marry, and does not bestow those benefits on same-sex couples that desire them, the only difference in the two scenarios is gender, against which the state cannot descriminate.

This reasoning also short circuts a lot of the breathless panic along the lines of people marrying dogs, etc.
posted by jalexei at 9:58 AM on November 6, 2008

O'Conner concurrance IS an interesting application of equal protection in homosexuality cases... it's just not law, sadly.

Actually, I think it's just as well. For one thing, she expressly hedged in a way that would allow prohibitions on gay marriage to stand.

"That this law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations--the asserted state interest in this case--other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

Scalia's dissent called her out on her attempt to distinguish the instant case with ones involving gay marriage, suggesting her reasoning leaves gay marriage prohibitions on "pretty shaky ground." At the same time, it's clear that he thinks the holding leaves bans on shaky ground, too: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding."

Other than that, though, I think Inkoate's reasoning is spot on. Not only is a due process attack more likely to succeed given the unlikelihood that the Court will require strict(er) scrutiny to classes based on sexual orientation, they also used the due process analysis to slam the Texas law:

"Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. . . If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons."

The majority uses the due process grounds to question the Texas law's "substantive validity," framing it as stigmatizing and generally demeaning the lives of gay people. And perhaps in doing so they laid the groundwork for overturning gay marriage bans - after all, denial of due process was a second independent basis for squashing the miscegenation statute in Loving v. Virginia. It depends, I think, on how far they're willing to ride the substantive validity horse.

Yeehaw.
posted by averyoldworld at 11:26 AM on November 6, 2008

30 states now have state constitutional provisions forbidding gay marriage.

As long as advocates of gay marriage continue to try to use legal means to cram this down the throat of an unwilling populace, the result will be voter backlash.

Whether you think that gay marriage should be permitted or not (I do), and whether you think it should be considered a right or not (I don't), what you have to realize is that in the long run it won't sustain unless the majority of Americans support it. Any court victory which goes against the majority will is fragile -- because courts can be changed, and legal decisions can be overturned.

No civil rights issue has ever prevailed without majority support.
posted by Class Goat at 12:19 PM on November 6, 2008 [1 favorite has favorites]

For now, gay-rights advocate attorneys are focusing legal attention within the state, arguing that the Proposition was an illegal constitutional revision rather than a limited amendment, for it allegedly compromises California's guarantee of equal protection. They are appealing to the California Supreme Court to overturn it.

Constitutional revisions must be approved by Legislature before being presented to voters, and Prop 8 didn't arise through this process.
posted by terranova at 8:12 PM on November 6, 2008

BTW, if there's something out there on the internet that would help me figure out what will happen and why, I'd love a link. My google-fu has turned up almost no discussion of this issue, perhaps because results are clogged by electioneering.

'Gay rights backers file 3 lawsuits challenging Prop. 8' (LA Times) has a some discussion of the legal issues. It seems to be a fairly untested area of the law, though, so there's lots of disagreement on what should/will happen.

You might also like to keep an eye on Towleroad. They've covered the Prop 8 battle in more detail than any other site I've seen.
posted by Georgina at 2:45 AM on November 7, 2008