Prop 8 Proponents’ Petition for Rehearing En Banc

by Ed Whelan

Prop 8 proponents yesterday filed a petition asking the Ninth Circuit to review en banc Judge Reinhardt’s opinion invalidating Prop 8. The petition makes a compelling case that the panel ruling conflicts with Supreme Court and Ninth Circuit precedent. Unfortunately, given the nature of the Ninth Circuit, that fact does not warrant a prediction that the Ninth Circuit will grant rehearing en banc.

In addition to the grounds set forth in the petition, Judge Reinhardt’s violation of his obligation to disqualify himself from taking part in the case provides an additional ground why responsible Ninth Circuit judges ought to vacate his ruling.

Here, and continuing below the fold, is the petition’s introduction:

In this case a divided panel struck down California’s Proposition 8 on the ground that there was no conceivable rational justification for a majority of the State’s voters to have supported restoring the traditional definition of marriage as a union “between a man and a woman.”  Cal. Const. art. I, § 7.5.  The panel majority held that the question of Proposition 8’s constitutionality is directly controlled by Romer v. Evans, 517 U.S. 620 (1996), which invalidated a constitutional amendment by which Colorado imposed, as the Supreme Court put it, an “unprecedented” and “comprehensive” ban on all “legislative, executive, or judicial actions at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians,” id. at 624.  The Colorado amendment was so unrelated to any conceivable legitimate state purpose that it could be explained only as a “bare . . . desire to harm” gays and lesbians by making them “stranger[s] to [the] laws.”  Id. at 634-35.

The panel majority’s reliance of Romer, however, cannot be reconciled with the simple truth, acknowledged by the panel majority itself, that the very issue resolved in California, at least for now, by Proposition 8 is “currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly.”  Op. 6 (emphasis added).  Indeed, the panel majority specifically disavowed any suggestion “that Proposition 8 is the result of ill will on the part of the voters of California.”  Op. 72.  But the panel majority nonetheless insists that Proposition 8 serves no conceivable legitimate state interest and that support for the initiative is inexplicable on any grounds other than “disapproval of gays and lesbians as a class,” and of “same-sex couples as a people.”  Op. 72, 73.  The “sole purpose” of  the initiative’s supporters, according to the panel majority, was to publicly proclaim the “lesser worth” of gays and lesbians as a class and to “dishonor a disfavored group.”  Op. 73, 76.

This charge is false on its face, and leveling it against the People of California is especially unfair.   First, it is difficult to see how the panel majority’s charge differs from the one that it was at pains to disavow.  Is it even remotely plausible that a person of good will, who bears gays and lesbians no ill will and who has no “desire to harm” them as a class, could nonetheless harbor a bare desire to dishonor them as a class?  Second, disapproving of the fundamental redefinition of marriage to include same-sex couples is plainly not the same as disapproving same-sex couples as a people.  Do President Obama and a host of other prominent champions of equal rights for gays and lesbians support the traditional definition of marriage solely to disapprove of gays and lesbians as a class and to dishonor same-sex couples as a people?  The reality is simply that “[t]here are millions of Americans,” as one of the Plaintiffs’ own expert witnesses has acknowledged, “who believe in equal rights for gays and lesbians … but who draw the line at marriage.”  M.V. Lee Badgett, When Gay People Get Married 175 (2009) (ER 1351) (quoting Rabbi Michael Lerner).

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Nowhere is this truer than in California, which has enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians, including a domestic partnership law that confers on same-sex couples virtually all of the same substantive benefits and protections as marriage.  Far from dishonoring same-sex couples as a people, California officially recognizes and protects their committed relationships through its domestic partnership laws, which were proposed and championed by the State’s leading gay rights advocates and organizations.  Californians draw the line at redefining marriage to include same-sex couples not because they disapprove of gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society’s legitimate interests.

Thus, there is irony, to say the least, in the panel majority’s determination that one of the Nation’s most gay-friendly states adopted Proposition 8 for no other reason than to publicly dishonor its gay and lesbian citizens and proclaim them less worthy as a class.  But the panel majority takes the point well beyond irony, and common sense, in determining that Proposition 8 is uniquely more vulnerable to constitutional challenge than the 28 other state constitutional amendments reaffirming the traditional opposite-sex definition of marriage, including those that also prohibit any official recognition same-sex relationships at all.  Proposition 8 stands apart from all other state marriage amendments, the panel majority emphasized, because of its “relative timing,” Op. 42, and because it “changes the law far too little to achieve any of the effects it purportedly was intended to yield,” Op. 76-77.  Having been adopted a few months after the California Supreme Court’s decision in the Marriage Cases interpreted the State Constitution to extend the right to marry to same-sex couples, Proposition 8’s “unique and strictly limited effect” was to “take away” from committed same-sex couples only the right to “the official designation of ‘marriage,’ … while leaving in place all of [marriage’s] incidents.”  Op. 6. 

But surely California’s generous domestic partnership laws do not put Proposition 8 on a weaker constitutional footing than the marriage laws of the federal government and the numerous states that provide little or no recognition or protection to same-sex couples and their families.  Indeed, the panel majority’s suggestion that these laws uniquely doom California’s ability to maintain the traditional definition of marriage creates a regrettable disincentive for those States to adopt civil union or domestic partnership laws and calls into question the constitutionality of the traditional definition of marriage in other States in this Circuit that have adopted such laws, such as Hawaii, see Haw. Rev. Stat. § 572B, Nevada, see Nev. Rev. Stat. § 122A, and Oregon, see Or. Rev. Stat. § 106.300.   As a practical matter, then, the panel majority’s ruling will “pretermit other responsible solutions” to the complex issues raised by same-sex relationships,  District Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2322 (2009), and will force States to make an all or nothing choice between retaining the traditional definition of marriage without any recognition of same-sex relationships and radically redefining an age-old institution that continues to play a vital role in our society. 

Nor is there any merit, legal or logical, in the panel majority’s theory that  “[w]ithdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.”  Op. 41-42.  To the contrary, under rational basis review, the “relative timing” of such events is wholly irrelevant.  If a person of good will can rationally oppose in good faith the State’s redefinition of marriage to include same-sex couples before the State has done so, that same person’s opposition, for the same reasons, obviously does not somehow become irrational the moment after the State has done so.  And the panel majority’s “relative timing” theory is refuted by, rather than “govern[ed]” by, the Supreme Court’s decision in Romer.  Op. 46-47.  True, the Colorado constitutional amendment at issue there effectively repealed a handful of municipal ordinances extending certain antidiscrimination protections to gays and lesbians.  But the timing of the amendment’s adoption played no role in the Court’s analysis:  the amendment was heldfacially invalid, and thus was void throughout the State, not just in those cities that had previously passed antidiscrimination ordinances.  Nor did the Romer Court’s decision leave any doubt at all that the amendment would have been struck down regardless where it came from, including a state lacking any preexisting legal protections, state or local, for gays and lesbians.  Indeed, the panel majority’s reading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede.”  458 U.S. 527, 535 (1982) (emphasis added).

In short, it matters not at all that adoption of Proposition 8reversed, rather thatpreempted, the California Supreme Court’s decision in the Marriage Cases:  the initiative was either rationally related to a legitimate state interest or it was not.  And the answer to that dispositive question turns on whether opposite-sex couples “possess distinguishing characteristics relevant to interests the State has authority to implement” in regulating marriage.  Board of Trustees v. Garrett, 531 U.S. 356, 366-67 (2001).

This is not a hard question.  Indeed, because of the distinguishing procreative characteristics of heterosexual relationships, until quite recently “it was an accepted truth for almost everyone who ever lived, in any society in which marriage existed, that there could be marriages only between participants of different sex.”  Hernandez v. Robles, 855 N.E.2d 1, 8 (N.Y. 2006).  And marriage has existed in virtually all societies, from the ancients to the American states, because it serves a vital and universal societal purpose—a purpose, indeed, that makes marriage, as the Supreme Court has repeatedly emphasized, “fundamental to the very existence and survival of the [human] race.”  Zablocki v. Redhail, 434 U.S. 374, 384 (1978) (quotation marks omitted).  That existential societal purpose is, and has  always been, to channel potentially procreative relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation.

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged by lawmakers, courts, and scholars of all times and places that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.  Indeed, no other purpose can plausibly explain the ubiquity of the institution.  Blackstone put it well:  the relation “of parent and child … is consequential to that of marriage, being its principal end and design; and it is by virtue of this relation that infants are protected, maintained, and educated.”  1 William Blackstone, Commentaries *410.  Marriage has served this universal societal purpose throughout  history by providing, in the words of sociologist Kingsley Davis, “social recognition and  approval … of a couple’s engaging in sexual intercourse and bearing and rearing offspring.”  The Meaning & Significance of Marriage in Contemporary Society 5,in Contemporary Marriage:  Comparative Perspectives on a Changing Institution (Kingsley Davis ed., 1985) (ER 428).

In light of all this, it is hardly surprising that every state and federal appellate court decision, including binding decisions of the Supreme Court and this Court, to address the validity of traditional opposite-sex marriage laws under the Federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.  As the Eighth Circuit said in upholding Nebraska’s marriage amendment in 2006, the state’s interest in “ ‘steering procreation into marriage’ … justifies conferring the inducements of marital recognition and benefits on opposite-sex couples, who can otherwise produce children by accident, but not on same-sex couples, who cannot.”  Citizens for Equal Prot. v. Bruning, 455 F.3d at 867.

The panel majority erred in breaking with the uniform and binding precedent upholding the constitutionality of laws adopting the traditional definition of marriage, and the Court, sitting en banc, should rehear this profoundly important case.