Tuesday, June 5, 2012

Future of Proposition 8 and Same-Sex Marriage in California

So the news today is that the 9th Circuit won't rehear the Proposition 8 case en banc.  For you non-lawyers out there, here's a bit of background: there are three levels of appeals when you lose in federal court.  The first level of appeal is the mandatory appeal wherein a three judge panel has to hear what you have to say.  That's the level of the most recent Prop. 8 decision. If you don't like what the three-judge panel has to say, you can ask for an 11-judge panel to rehear the case en banc.  This tends to happen when the judges don't like how the decision was written, or the outcome of the case.  Either way, the appellate court doesn't have to rehear the case.  The last level of appeal is to the Supreme Court, which is also discretionary.  Typically, the Supreme Court takes maybe 0.1% of the cases where people ask for review.  Most people think that the question of Prop. 8 now goes to the Supreme Court.

But I do not.  Given that the decision overturning Prop. 8, and allowing same-sex marriage in California is so narrow, and so well-supported by the facts, I can well see the Supremes deciding to leave well enough alone.  And here's why - every decision by the Supreme Court affects not just its decision-making in the future, but also whether it gets inundated by other cases in the future.  In the 1950's and 1960's, Justice Potter Stewart said that he knew which pornography was obscene when he saw it.  So, the Supreme Court had to go through reams of pornography to decide what was obscene, and what was not.  By watching it.  With people they work with.  And Justice Thurgood Marshall would crack jokes (mostly mocking the conservatives for making everyone do this).

Similarly, if the Supreme Court were to overturn the 9th Circuit and Judge Walker's decision, it would invite a similar disaster because Judge Walker and the 9th Circuit were ridiculously thorough, and Judge Walker made evidentiary rulings based on live testimony, and based his decision on the lowest possible civil rights standard.  Now, the Supreme Court could rule that the 14th Amendment's Equal Protection Clause (which is the basis of the Judge Walker's decision) is meaningless, but doing so would overturn hundreds of previously decided cases.  Or, the Court could determine that the 14th Amendment doesn't apply to gay people, also overturning cases - including cases written by Justice Kennedy (the lone swing vote).  Or, the Supremes could decide that they need to hear witness testimony.  Either way, overturning the 9th Circuit would create more work for the Supremes.

Now, the Supremes actually vote on whether or not they're going to hear a case.  For the conservative Justices (Alito, Scalia, Thomas, Roberts), taking the case means that Justice Kennedy will end up writing the opinion, and he might write a more expansive opinion than the 9th Circuit.  That's bad.  If you are a moderate/liberal (Breyer, Ginsberg, Kagan, and Sotomayor), you know that Justice Kennedy might overturn the 9th Circuit, and knocking civil rights back 100 years.  So, both the conservatives and the liberals see some serious downsides in taking the case.

Plus, as I said before, the Prop. 8 ruling is incredibly narrow - limited to California, and to the circumstances of the trial.  Not taking the case means that same-sex couples get married in California but doesn't affect same-sex marriage bans anywhere else (at least until DOMA is overturned). So, my bet is that the Supremes don't touch this case.

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