When the California Supreme Court heard oral argument in Perry v. Brown on September 6, it seemed like déjà vu all over again. For the third time in four years, the court was considering the continuing fight for equality being waged by same-sex couples seeking the right to marry. Whatever the court’s ruling on the question of standing that was before it, the legal battles will continue until the United States Supreme Court has the final word. How the highest court will rule is not at all certain – and the roller-coaster ride will continue until that decision is announced.
To say it all began with the California Supreme Court’s decision in The Marriage Cases is to overlook the long march toward equality that preceded it. But for purposes of looking back and taking stock, that decision remains the high-water mark for the state court litigation. It was there that the court held that Family Code provisions limiting marriage to one man and one woman violate same-sex couples’ fundamental right to marry and the equal protection clause of the California Constitution. As Chief Justice Ronald George, writing for the majority put it, “retaining the designation of marriage exclusively for opposite-sex couples and providing only a separate and distinct designation [domestic partnership] for same-sex couples may well have the effect of perpetuating a more general premise – now emphatically rejected by this state – that gay individuals and same-sex couples are in some respects ‘second class citizens’ who may, under the law, be treated differently from, and less favorably than, heterosexual individuals or opposite-sex couples.” (In re Marriage Cases (2008) 43 Cal.4th 757, 784-785.)
After the decision in The Marriage Cases, San Francisco and other counties issued approximately 18,000 marriage licenses to same-sex couples. But if The Marriage Cases embodied the triumph of equality over discrimination, that triumph was also short-lived. And it is no little irony that Chief Justice George’s legacy includes the court’s subsequent decision validating Proposition 8, and reversing The Marriage Cases’ holding that same-sex couples have the right to marry, not just to be “domestic partners.” (Strauss v. Horton (2009) 46 Cal.4th 364.)
While The Marriage Cases were pending in the Supreme Court, the opponents of same-sex marriage initiated a petition proposing an amendment to California’s constitution. The measure, Proposition 8, added the words, “Only marriage between a man and a woman is valid or recognized in California.” These are the very same words that were added to the Family Code, but were nullified by the Court when it decided The Marriage Cases. Less than six months after The Marriage Cases decision, Prop 8 was approved by a majority (52.3 percent) of those casting votes on it.
As Chief Justice George would later write in an our-hands-are-tied tone, “the principal issue before us concerns the scope of the right of the people, under the provisions of the California Constitution, to change or alter the state constitution itself through the initiative process . . .” (46 Cal.4th at p. 385 (italics in original).) It must have been somewhat vexing for the Chief Justice to put pen to paper, for in deciding that Prop 8 is a permissible amendment and not an impermissible “revision,” he repeatedly reiterates that “Proposition 8 does not abrogate . . . any other of ‘the core set of basic substantive legal rights and attributes traditionally associated with marriage’ such as the right to establish an officially recognized and protected family relationship with the person of one’s choice . . .” (Id. at p. 390.) As the court put it, “Proposition 8 . . . carves out a narrow exception applicable only to access to the designation of the term ‘marriage’ . . .” (Ibid.) But it was access to that designation which the Court found must be provided to same-sex couples in The Marriage Cases. Nevertheless, where the Family Code statutes nullified in The Marriage Cases ran afoul of the previous version of California’s constitution, the same language nested in the amended constitution, “eliminate[d] the ability of same-sex couples to enter into an official relationship designated as ‘marriage’ . . .” (Id. at p. 411.)
If something as important to both sides could be described as a game of chess, then in Strauss, Prop 8’s supporters won the match. But the next battle would take place in federal court and involve the federal constitution. After a lengthy trial, the same language permissibly amending the California constitution was found to violate the federal document. “Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” (Perry v. Schwarzenegger, 704 F.Supp. 2d 921, 991 (N. Dist. Cal. 2010).)
In finding that Prop 8 violates the due process clause, Judge Vaughn Walker wrote, “The record reflects that marriage is a culturally superior status compared to a domestic partnership. California does not meet its due process obligation to allow plaintiffs to marry by offering them a substitute and inferior institution [domestic partnership] that denies marriage to same-sex couples.” (Id. at p. 994.) And in finding that Prop 8 violates the equal protection clause, Walker wrote that Prop 8’s supporters “assume[d] a premise that the evidence thoroughly rebutted: rather than being different, same-sex and opposite-sex unions are, for all purposes relevant to California law, exactly the same.” (Id. at p. 1001.) “The evidence at trial regarding the campaign to pass Proposition 8 uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.” (Ibid.)
“Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” – Judge Vaughn Walker
The Prop 8 proponents appealed and the struggle shifted to the Ninth Circuit. And so it seemed surreal that the case came back to the California Supreme Court – now the Chief Justice Tani Cantil-Sakauye Court – on the question of standing. In Perry v. Brown, the Ninth Circuit certified a question to California’s high court, namely, whether the proponents of Prop. 8 have standing to defend it given the governor’s and attorney general’s refusal to do so. The Cantil-Sakauye Court seemed skeptical of the argument that nobody could defend Prop. 8 if the governor and attorney general declined. But this is only a detour, and it will not obviate the Ninth Circuit’s obligation to fully address Article III standing, and if standing is found, the merits. All of this is, of course, just a stop along the way to ultimate resolution in the United States Supreme Court.
Appellate judges and lawyers often remark that controlling how the questions are framed is the best way to control the result. As the parties await the next and further decisions on same-sex marriage, the ultimate decision will turn in no small part on how the United States Supreme Court frames the questions. Do the proponents of same-sex marriage seek to exercise the fundamental right to marry? Or do they seek recognition of a new right? Is sexual orientation a suspect class for equal protection purposes? And so on. Judge Walker answered the questions this way: “Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians. The evidence shows conclusively that Proposition 8 enacts, without reason, a private moral view that same-sex couples are inferior to opposite-sex couples.” Only time will tell if his words retain their force and whether same-sex couples in California will finally stand on an equal – and married footing – with opposite-sex couples.
Gary A. Watt, partner with Archer Norris in Walnut Creek and member of the firm’s appellate practice section, is director of UC Hastings’ Ninth Circuit clinical program, “The Hastings Appellate Project,” and chair of the Contra Costa County Bar Association’s appellate practice section. He can be reached at email@example.com.
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