Three Ways to Strike Down Prop 8 Without Declaring Marriage Discrimination Unconstitutional

Earlier today, a three judge panel of the United States Court of Appeals for the Ninth Circuit heard oral arguments in the Perry v. Schwarzenegger challenge to anti-gay Proposition 8.  The lengthy hearing — extending for more than two full hours — was divided into a hearing on the merits of the case and another, earlier session on whether or not the court has the power to hear this case in the first place.

At first glance, the case appears to have gone well for supporters of the Constitution’s Equal Protection Clause.  Judge Michael Daly Hawkins, the “swing vote” between liberal Judge Stephen Reinhardt and conservative Judge N. Randy Smith, was particularly aggressive in questioning Prop 8’s proponents.  Indeed, his very first question on the merits of the case compared marriage discrimination to public school segregation.  Likewise, the judges were eerily quiet when plaintiff’s attorney Ted Olson took the podium, and were far more active in questioning marriage equality’s opponents.

At the same time, however, the judges often appeared to be questing for a way to strike down Prop 8 without also ruling that all marriage discrimination in the United States must end immediately.  Their questions suggest three possibilities:

  • No Standing

Coming into the hearing, the smart money was on a decision holding that supporters of Prop 8 lack “standing” to bring this appeal because the Constitution requires someone seeking relief from an appeals court to show that they have somehow been injured by the court below — and anti-gay activists suffer no harm whatsoever from marriage equality.  By the end of the hearing, however, this outcome was not quite so certain.

Both Judges Reinhardt and Smith appeared concerned that, by refusing to appeal the trial court’s decision themselves, California’s governor and attorney general had effectively vetoed a state referendum.  Because California law does not allow a governor to directly veto a referendum, Judge Smith suggested, it shouldn’t enable two state officials to indirectly veto it by refusing to litigate.

Reinhardt raised the possibility of asking the California Supreme Court to answer whether Prop 8’s proponents are allowed to act on behalf of the state, a tactic which could allow the court to reach the merits of the suit, but which could also delay resolution of the case by months.

  • Civil Unions Require Marriage

In Romer v. Evans, the Supreme Court held that a law motivated solely by animus against a particular group violates the Constitution.  Prop 8’s proponents offered a few possible goals of the law other than unconstitutional animus, such as the state’s desire to encourage couplings that are biologically capable of producing children.  At one point, however, Judge Smith questioned whether this suggested motivation can rescue the law.  Because California already offers gay couples all the legal rights of marriage besides the word “marriage,” they have already stopped affording special status to straight couples and thus have no rational basis for denying use of the title “marriage” to gay men and lesbians.

Later in the argument, however, Judge Smith suggested that this argument could cut the other way — because California law takes the minimum steps necessary to place straight couples on a pedestal, it does not impose any more injury on gay couples than is necessary to uphold Prop 8 proponent’s suggested goal.

  • Taking Away A Right Is Harder

Finally, the judges were quite interested in the significance of the fact that Prop 8 took away from gay couples a right that they already had under California law.  There was some indication that the court may decide that stripping a right is more difficult to justify under the Constitution than simply not providing in a new right, in which case Prop 8 would fall but most non-equality states would be allowed to continue their present policy.