Bench Memos

Prop 8 Certiorari Petition

As expected, the proponents of Proposition 8 have filed a petition for certiorari asking the Supreme Court to review and reverse Judge Stephen Reinhardt’s badly flawed Ninth Circuit ruling striking down Prop 8. For the reasons set forth in the petition, I strongly believe that the Court should and will grant review.

Here (and continuing below the fold) is the introduction to the cert petition:

The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples “is currently a matter of great debate in our nation,” as the court below acknowledged, “and [is] an issue over which people of good will may disagree.” App. 17a. Six States and the District of Columbia now recognize same-sex marriages, and two other States have enacted legislation that would recognize same-sex marriages but will not take effect unless approved by the People in referenda this fall. Many other States, on the other hand, have chosen instead to retain, at least for now, the traditional definition of marriage as the union of a man and a woman. As our Nation’s founders envisioned, then, some States have chosen to “serve as a laboratory; and try [this] novel social . . . experiment[ ] without risk to the rest of the country,” while others have chosen to continue evaluating the results of the experiment before making such a profound change to this age-old, civilizing social institution. New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). Until the decision below, every state and federal appellate court to consider a federal constitutional challenge to state laws defining marriage – including this Court, see Baker v. Nelson, 409 U.S. 810 (1972) – had upheld the traditional definition, thus permitting the “earnest and profound debate about the morality, legality, and practicality of [redefining marriage] . . . to continue, as it should in a democratic society.” Washington v. Glucksberg, 521 U.S. 702, 735 (1997).

In this case, however, a divided panel of the Ninth Circuit held that the Equal Protection Clause of the Fourteenth Amendment bars the People of the State of California from adopting a constitutional amendment – Proposition 8 – that reinstated the traditional definition of marriage a few months after the California Supreme Court, in a four-to-three decision, had ordered that marriage be redefined to include same-sex couples. Proposition 8 was doomed, the panel majority reasoned, because of its “relative timing,” App. 56a, and because it “change[d] the law far too little to achieve any of the effects it purportedly was intended to yield,” App. 91a. Having been adopted after the California Supreme Court’s decision in In re Marriage Cases interpreting 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 same-sex couples “the official designation of ‘marriage,’ ” while “leaving in place all of its incidents” under the State’s domestic partnership laws. App. 17a.

The panel majority held that Proposition 8’s constitutionality is directly controlled by Romer v. Evans, 517 U.S. 620 (1996), even though that case invalidated a Colorado constitutional amendment that, far from having a “unique and strictly limited effect,” imposed an “unprecedented” and “comprehensive” ban on all “legislative, executive or judicial action at any level of state or local government designed to protect the named class [of] homosexual persons or gays and lesbians,” id. at 624. Further, the timing of the Colorado amendment’s adoption played absolutely no role in the Court’s analysis. True, the Colorado amendment operated to repeal a handful of municipal ordinances extending certain antidiscrimination protections to gays and lesbians, but the amendment was held facially 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 misreading of Romer would bring the case squarely into conflict with Crawford v. Board of Education, 458 U.S. 527 (1982), which expressly “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede,” id. at 535 (emphasis added). As Judge O’Scannlain recognized in his dissent from denial of rehearing en banc, the panel majority’s ruling rests on a “gross misapplication of Romer v. Evans . . . that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the Judges from sister circuits who have since interpreted it.” App. 445a.


The Ninth Circuit’s error, if left uncorrected, will have widespread and immediate negative consequences. As the policy debate progresses in other States (especially, though not exclusively, those in the Ninth Circuit), it will necessarily be skewed by the suggestion that any experiment with the definition of marriage is irrevocable. Similarly, the Ninth Circuit’s determination that California’s progressive domestic partnership laws uniquely undermine the State’s ability to maintain the traditional definition of marriage will have the perverse effect of creating strong disincentives for States to experiment with civil union or domestic partnership laws. Indeed, even on its own terms, the ruling calls into immediate question the constitutionality of the traditional definition of marriage in other States in the Ninth Circuit that have already provided recognition and benefits to same-sex couples, such as Hawaii, Nevada, Oregon, and Washington. If allowed to stand, the decision below thus will as a practical matter “pretermit other responsible solutions” to the emerging and novel social issues raised by same-sex relationships, District Attorney’s Office v. Osborne, 557 U.S. 52, 73 (2009), and will force States to make an all-or-nothing choice: either to retain the traditional definition of marriage without any recognition of same-sex relationships or to radically redefine – with no possibility of reconsideration – an age-old institution that continues to play a vital role in our society today.

Even more problematic is the panel majority’s conclusion that Proposition 8 serves no conceivable legitimate state interest and that the “sole purpose” of the initiative’s supporters was to proclaim publicly the “lesser worth” of gays and lesbians as a class and to “dishonor a disfavored group.” App. 88a, 91a. This conclusion conflicts with a host of state and federal appellate decisions upholding the traditional definition of marriage as rationally related to society’s vital interest in channeling the unique procreative potential of opposite-sex relationships into enduring, stable unions for the sake of responsibly producing and raising the next generation. Indeed, the Ninth Circuit’s sweeping dismissal of the important societal interests served by the traditional definition of marriage is tantamount to a judicial death sentence for traditional marriage laws throughout the Circuit.

In any event, the Ninth Circuit’s charge is simply untrue, and leveling it against the People of California is especially unfair, for they have enacted into law some of the Nation’s most sweeping and progressive protections of gays and lesbians. Californians of all races, creeds, and walks of life have opted to preserve the traditional definition of marriage not because they seek to dishonor gays and lesbians as a class, but because they believe that the traditional definition of marriage continues to meaningfully serve society’s legitimate interests, and they cannot yet know how those interests will be affected by fundamentally redefining marriage. As President Obama recently recognized, millions of Americans “feel very strongly” about preserving the traditional definition of marriage not “from a mean-spirited perspective,” but simply because they “care about families.” Robin Roberts ABC News Interview with President Obama, May 9, 2012, available at

Unique recognition of a unique relationship in no way disapproves or dishonors other relationships that the State has chosen to recognize differently. As the First Circuit recently recognized, “preserv[ing] the heritage of marriage as traditionally defined over centuries of Western civilization . . . is not the same as ‘mere moral disapproval of an excluded group.’ ” Massachusetts v. United States Dep’t of HHS, 682 F.3d 1, 16 (1st Cir. 2012) (quoting Lawrence v. Texas, 539 U.S. 558, 585 (2003) (O’Connor, J., concurring in judgment)). Thus, while our Constitution does not mandate the traditional definition of marriage, neither does our Constitution condemn it. Rather, it leaves the definition of marriage in the hands of the People, to be resolved through the democratic process in each State.

This Court should review the decision below to resolve the conflicts it creates with the decisions of other appellate tribunals, to correct its manifest errors in disregard of this Court’s precedents, and to return to the People themselves this important and sensitive issue.


The Wuhan Lab Cover-Up

The Wuhan Lab Cover-Up

It's now certain that the U.S. government misled the public about the kind of research that the U.S. taxpayers were indirectly funding in China.

The Latest