Jerry Brown Wins

by John Yoo

Whats next for gay marriage after Windsor and Perry today? The story, both nationally and locally, requires politics to move gay marriage forward, but the Supreme Court today put a heavy weight on the scale against defenders of traditional marriage. There is a lot of political pain to come for both sides, but in the end the Court has given gays the advantage. The big winner in all of this? Jerry Brown, believe it or not.

At the national level, Windsor’s striking down of the Defense of Marriage Act may seem to allow the normal political process to function. I would prefer that result: that the Constitution be understood to allow the states to decide for themselves whether to allow gay marriage, and that we arrive at any national rule through the political process of elections and passing legislation. Despite invalidating DOMA, Windsor does not purport to touch any state’s law on gay marriage, and so it seems still possible for California and New York to have different rules if they wish. We may still yet see the nation arrive at a consensus through regular political channels, but in a way that the Supreme Court denied the country in Roe v. Wade on abortion. 

Any national result would come after bruising, state-by-state political battles, and it may mean that in the end a group of states will remain in the minority. But here is where Windsor is not so faithful to federalism as it claims. For supporters of gay marriage will invariably challenge any Prop 8-like bans on the same logic that the Court today used to strike down DOMA. According to Justice Kennedy’s majority opinion, DOMA violated the Fifth Amendment’s Due Process Clause because it created two types of relationships — marriage for heterosexuals, and something else for gays (civil unions, in most cases). This differential treatment demeaned and denigrated gays and so signaled an unconstitutional animus — “bigotry,” to use Chief Justice John Roberts’s word. The Court did not allow any other, legitimate government purposes to save DOMA once it decided that this bad motive was present among the supermajorities in Congress, and the president, back in 1996 at DOMA’s passage.

Under this logic, state bans on gay marriage like California’s Proposition 8 are equally unconstitutional. There may have been good motives on the part of supporters, such as an intention to defend traditional marriage, a desire not to experiment with important social traditions, and worry about marriage, divorce, and reproductive rates.  None of those, however, will save Proposition 8 or similar laws under the Court’s logic. The different treatment of gays and heterosexuals on marriage, the Court says in Windsor, automatically violated the Due Process Clause. It is difficult to see why the Windsor majority would go to such lengths to strike down DOMA, passed with greater majorities in Congress than needed for a constitutional amendment, but then bless state laws with the same purpose of preventing gays from remedying.

The situation in California, where I unfortunately live, is equally difficult. In Perry, the Supreme Court held that the defenders of Proposition 8 had no standing. I think that the Court’s holding is seriously mistaken, as a matter of federalism (state law should decide who can represent the state in litigation), separation of powers (the Court misread its precedents on the extent of judicial power), and simple consistency (how could standing exist in Windsor but not Perry, when both cases involved executives who would not defend their laws?). What happens next? If private individuals cannot defend state laws in federal court, as Perry holds, then the Ninth Circuit Court of Appeals had no jurisdiction and its decision is wiped out. But not so for the district court, which held in favor of a gay couple and struck down Proposition 8. That is because the plaintiffs in that case were not supporters of Proposition 8, but those harmed by it — the gay couple clearly has standing.

So what is the result?  It seems to me that the gay couple still wins, but that Judge Vaughn Walker’s opinion is also wiped away. The gay couple wins because the government never shows up to defend the statute; the plaintiffs win, in essence, a default judgment. But without an opinion, there is no precedent to apply on Proposition 8 throughout the state of California. That leaves the winner, oddly, as Jerry Brown. As governor, Brown could order state and local officers not to enforce Proposition 8 based on the judgment in Perry or even on the reasoning of Windsor. In fact, it appears Brown may have already done so.

So Brown comes out the big winner. He can delay or even nullify an initiative enacted by the people of California simply by refusing to defend it in court — despite the fact that the whole point of an initiative is to pull an end-run around recalcitrant state officials. And if a court strikes down the initiative, Jerry Brown gets to decide whether and how to enforce it in this case. Brown has effectively defied the will of a majority of the people of California.


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