Prop 8 Unconstitutional (again)

A 3-judge panel from the 9th District Court of Appeals released a 2-1 opinion today confirming that stripping the rights of same-sex Californians to marry was unconstitutional.

The dissenting judge, N. Randy Smith of Pocatello, Idaho, opined that Plaintiffs had not met their responsibility to remove all debatable issues surrounding potential legitimate governmental interests in supporting “responsible procreation” (that children should be born in wedlock) and “optimal parenting” (that the best place for raising children is in the homes of two married, biologically related adults). In taking his conservative view that courts should be reticent to strike down legislation, he concluded his dissent by saying,

[B]oth sides offer evidence in support of their views on whether the optimal parenting rationale is a legitimate governmental interest. Both sides also offer evidence to undermine the evidence presented by their opponents. However, the standard only requires that the optimal parenting rationale be based on “rational speculation” about married biological parents being the best for children….Considering “the question is at least debatable,”… the optimal parenting rationale could conceivably be a legitimate governmental interest.

In anticipation of questions regarding his own thoughts and feelings about same-sex marriage (Smith appears to have many Mormon and BYU ties and is probably LDS), he wrote,

“Our personal views regarding the political and sociological debate on marriage equality are irrelevant to our task. Instead, we are only asked to consider the constitutional validity of Proposition 8 under the federal Constitution.”

The majority opinion, however, written by Judge Stephen R. Reinhart, put it this way:

“By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution]. We hold Proposition 8 to be unconstitutional on this ground.”

The question of whether Prop 8 proponents had standing to bring the appeal at all was unanimously upheld, and the question as to whether Judge Vaughn Walker should have recused himself was unanimous also – there was no reason he should not have heard the case.

This judgment is a narrow one, crafted to apply to Californians mostly because Prop 8 took away the existing right to the name, “marriage” for same-sex unions. As a result, even if the U.S. Supreme Court agrees to hear an appeal, chances that it will be precedent-setting for the rest of the nation are slim to none.

The stay on the judgment remains in place for at least three more weeks, so no same-sex marriages will be created in California immediately.

There are two possible paths to appeal at this point: An en banc hearing in front of all 11 judges in the 9th Circuit or a request directly to the U.S. Supreme Court.

Looking for more analysis? Try here or here or here.

17 Responses to “Prop 8 Unconstitutional (again)”
  1. Brad Carmack says:

    Great brief, Laura. Will there be a separate post regarding the press release of the Church’s response?

  2. Tom Biederman says:

    Judge Smith’s dissent does not make sense to me. Biological fertility is not a requirement for marriage, so the “optimal parenting rationale” seems over inclusive in that it excludes couples who may never intend to be parents. Prop 8 did not stop gay couples from adopting, using surrogacy or modern reproductive technologies, only access to the marriage designation. If Prop 8 banned adoptions, surrogacy and the use of modern reproductive technologies, then the optimal parenting rationale might have legs (is debatable and have at least some grounding in reality). I fail to see a rational basis argument in his view because Prop 8 had no effect on parenting.

    Judge Smith also stated that proponents claimed no scientific studies were submitted comparing child outcomes of heterosexual and homosexual couples. I’d have to re-read Walkers finding of fact and conclusion of law, but my understanding is that the issue of child outcomes were addressed. Judge Smith pointed out that evidence was presented from both sides and he gives equal weight to both. I find this stunning, evidence that does not meet the robust standards of peer review from NARTH and other evangelical organizations (American College of Pediatrics) are given the same weight as evidence from the APA, AMA and American Academy of Pediatrics.

  3. fiona64 says:

    Tom, it is my considered opinion that Judge Smith did not craft his dissent as part of the judiciary but rather from his POV as Brother Smith. Your recollection, BTW, is correct in re: the parenting issues. The studies are out there and were brought up. They were just disregarded by Smith, who gave weight to discredited organizations — and I will always believe that this is because of his own personal religious bias (a bias that the founder of this site and many others stand against).

  4. fiona64 says:

    Here’s the church’s response, BTW:

    Too bad the authors of the press release do not seem to understand how the Constitution works, or that we do not live in a direct democracy. Just because some group votes a discriminatory law into effect does not mean that law will stand.

  5. Laura says:

    Regarding the parenting issues, Smith quotes from the Prop 8 supporters’ brief:

    [Proponents] argue “Plaintiffs fail to cite to a single study comparing outcomes for the children of married biological parents and those of same-sex parents. Thus, Plaintiffs have failed to undermine, let alone remove ‘from debate’ the studies showing that married biological parents provide the best structure for raising children.”

    I know there were a number of studies comparing married couples as parents to straight individuals as parents presented by Prop 8 supporters – studies that concluded children do better with two parents than one parent. Then there was testimony from Plaintiffs’ witnesses debunking the idea that same-sex couples raising children are equivalent to single parents raising children.

  6. Laura says:

    As to the rational basis argument –

    It’s pretty hard to strike down any law if the standard for its constitutionality is based on the legal idea of “rational basis.”

    Under a rational basis review, the bias is toward keeping the law in place – there has to be a huge reason to strike it down, and it’s up to those challenging the law to bring the huge reason(s) to the forefront and to make it perfectly clear that there’s no reason to keep it.

    Unfortunately, since there’s no special protection for homosexuals under federal law, since they are not [yet] recognized as part of a “suspect class” that is: a political minority with a history of discrimination with immutable characteristics, it is possible (and, as Smith argues, required) that courts apply the broad and lenient “rational basis” test to laws affecting homosexuals:

    Under rational basis review “we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.”

    In equal protection analysis, rational basis review “is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”

    The government is not required to “actually articulate at any time the purpose or rationale supporting its classification”; rather, a classification “must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.”

    The measure at issue “is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data” “The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.”

    Whether homosexuals should be considered part of a suspect class and therefore have a standard higher than mere “rational basis” review applied to laws that affect them is a factor in our current presidential administration’s selection of which DOMA laws to defend.

    There are definitely more than a few legal holes to fill via legislatures or courts to [establish] and protect the rights of everyone in our society – including our GLBTQ population.

  7. Tom Biederman says:

    Perhaps DOMA litigation might produce a full throttled equal protection analysis or argumentation somewhere down the road for rational basis with a bite or heightend scrutiny.

    Smith’s argument from a legal perspective seems sound regarding rational basis. I can understand how rational basis applies to his “Optimal Parenting” argument. However, according to the court of appeals finding of fact, “Prop 8 sole purpose and effect was to eliminate the right of same-sex couples to marry in California – to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying societal status and nothing more.” My question for Judge Smith, then is what does the Optimal Parenting argumentation have to do the stated purpose, intent and effect of Prop 8? It does not appear to me at least, to have anything to do with parenting. A straw man argument?

  8. Dave Hoen says:

    I read the Church’s statement cited by Fiona above. I find it sadly amusing.

    The Church statement includes, “Courts should not alter that definition [of marriage], especially when the people of California have spoken so clearly on the subject.”

    Spoken so clearly? Considering that Prop 8 passed by swinging a mere 2% of the vote to the “Yes” side through exaggerations and lies, how can any reasonable person call this a clear mandate?

    Furthermore, the statement that “Millions of voters in California sent a message . . .” devalues millions of voters in California who also voted to not strip a minority of their basic civil rights.

    Of course the majority target audience of the Church’s press release (fellow Mormons) won’t delve deeper into the facts to discover that Prop 8 barely passed and that the majority of the deceptive ads were produced and paid for by Mormon money.

    When the Church is desperately trying to revamp its image, why does the Church leadership continue to paint themselves into a corner with statements and actions which in just a few short years from now will be viewed by the majority of Americans (and the majority of Mormons) as outlandish, uninspired and just plain hateful? One would expect better from a Church which claims modern day revelation.

  9. Sheri says:

    Great coverage of this topic everyone. And David H. I agree with you wholeheartedly. The tide seems to be turning and the church is quickly losing ground on this issue. It will soon be viewed by even the majority of it’s members as failing to explore and reconsider the harmful effects of their stance, in favor of promoting bigotry and ignorance.

  10. Rude Dog says:

    Yes David.

    I was raised to assume that truth would “cut its own way”, and that the arguments that supported truth would not need to be twisted, fatuous, disingenuous, and spurious. How disappointed am I, child of the Restoration, belonging to a people who are leery of science, skeptical of intellect, and ignorant of the constitution.

    My eyes are widening, but squinting at the brightness of reality. The tears that come are the tears of optimism, cheerfulness, and hope at what lies ahead as my eyes slowly adjust. Judge Walker, that unrighteous, carnal, sensual, devlish, dirty homosexual spoke eloquent truth about the human condition, and put Thomas Monson and his couplet “so called science” in a place where my pupils are failing to see anymore.

  11. FirstTime says:

    Thanks for the post. Just one (albeit minor) point of clarification: You stated that a rehearing at the Ninth Circuit would be before “all 11 judges in the ninth circuit.” There are, in fact, 29 judges currently sitting in the Ninth Circuit. But you are correct – en banc in the Ninth Circuit really means a hearing before an 11 judge panel. A hearing before all 29 judges, or a “super en banc” hearing, is extremely rare.

    Now to the substance: I agree that the decision is very narrow. I agree with others who say they cannot see Boies and Olson passing on the opportunity to take this to SCOTUS and try for a broad ruling. Whether they win the race to SCOTUS before the DOMA cases get there remains to be seen. I think DOMA may be the better vehicle, but I’m open to being persuaded otherwise.

    I completely agree with your “Brother Smith” characterization of the dissent.

    I am also suprised by the rational basis review; I remain hopeful that some level of heightened scrutiny is in the future.

    I really appreciate this site and the effort you put into it; I can’t tell you how grateful I am to have found comfort in the many voices from this site that demonstrate that many faithful Mormons believe in marriage equality for all. To all of you – thanks for your courage.

  12. Laura says:

    FYI, the ProtectMarriage people have decided to ask the 9th Circuit to take the case. From the AP:

    “After careful consideration, we determined that asking for reconsideration by the full Ninth Circuit is in the best interests of defending Prop. 8,” said Andy Pugno, general counsel for the Protect Marriage coalition. “This gives the entire 9th Circuit a chance to correct this anomalous decision by just two judges overturning the vote of seven million Californians.”

    If Proposition 8’s sponsors had not sought the 9th Circuit’s reconsideration by a midnight deadline, the three judges would have let the ruling take effect in another seven days, clearing the way for same-sex marriages to resume in the state for the first time since Proposition 8 passed.

    Instead, same-sex marriages will remain on hold at least until the 9th Circuit decides to accept or reject the rehearing petition. The court does not face a deadline for doing so, and if it agrees to take the case, it could order another round of legal arguments that would further delay a final ruling.

    Although the closely watched case is expected to reach the Supreme Court eventually, legal experts said supporters of the ban could be exhausting all their options before asking the high court to intervene. If a majority of the 9th Circuit’s 25 actively serving judges agree to reconsider the case, it would be assigned to a panel that includes the chief judge and 10 randomly selected judges.

  13. fiona64 says:

    It amazes me that Pugno et al. don’t seem to a) understand how our government works (i.e., checks and balances) and b) that they won by a margin of 2 percent. They’re more than willing to throw out the vote of 7 million people who did NOT support discrimination, but want to whine when their prima facie unconstitutional measure is found ::gasp:: unconstitutional. I was saying long before the vote that Prop 8 violated the 14th Amendment and I’m not a lawyer. The Prop H8 folks need to go back to civics class, I think. How many bites of the apple do they think they deserve?

  14. WJ says:

    Fiona64, throwing out the votes of millions of citizens who voted for the losing side is precisely what happens after every election. The question is whether the majority, however narrow – a majority that has been accomplished in Califoirnia twice – deserves the right to have its policy preferences enacted, or whether those prefernces are unconstitutional.

    The 14th Amendment is not a magical time capsule out of which jumps a fairy (the mythical kind, not the gay kind) yelling “Surpise, gay marriage!” 144 years after its adoption. No one – *NO ONE* – who voted for adopting the amendment back in 1868 understood it to require gay marriage. For that matter, it didn’t even grant women the right to vote. That right came much later, and only as the result of yet another constitutional amendment.

    The Left would twist ancient laws to mean whatever they now want them to mean because they cannot accomplish their aims democratically. I am nominally for gay marriage (mostly I think it’s irrelevant), but I believe it should be accomplished through the democratic process, rather than by undermining it. Gay marriage, stopping immigration enforcement, outlawing the death penalty – when the extremists on the Left can’t get what you want, you resort to cheating.

  15. fiona64 says:

    WJ spewed: The Left would twist ancient laws to mean whatever they now want them to mean because they cannot accomplish their aims democratically. I am nominally for gay marriage (mostly I think it’s irrelevant), but I believe it should be accomplished through the democratic process, rather than by undermining it. Gay marriage, stopping immigration enforcement, outlawing the death penalty – when the extremists on the Left can’t get what you want, you resort to cheating.

    Hmm. I guess that you have never read Federalist No. 10, or you would understand why peoples’ rights should not be up for ballot. Which of your rights would it be okay to vote on?

    And “ancient laws”? I assume that by this you mean the alleged Biblical definition of marriage? Well, I have news for you: marriage is now and always has been an elastic institution. The Bible allowed for polygamy, forced marriage between slaves, women given in marriage as spoils of war, and for women to be forced into marriage to their rapist. Which of those “ancient laws” shall we bring back, WJ?

    For crying out loud, marriage law has changed in my *lifetime* with Loving v. Virginia. Get a grip, WJ.

    BTW, using the checks and balances of the court system is not “cheating,” no matter how much you want to try to pretend otherwise.

  16. WJ says:

    You assumed – spewed that you assumed – that my reference to “ancient laws” refers to the Bible. Where did I mention anything about the Bible? I don’t even believe in the Bible.

    It’s odd/sick/sad/disturbing that even after I noted that I support gay marriage (if passed democratically) you still have to spew forth your venom implying I must be a hateful, anti-woman, pro-slavery troglodyte, and probably a puppy-kicker to boot.

    My reference was to the law as understood in this country since 1787, or even 1607. The 14th Amendment was not understood to grant all the rights the Left now purports it granted. It was not understood to grant gays the right to marry, or to grant women the right to vote. It was not understood to negate a whole lot of laws which were fully in force at the time of its passage. If it was intended to revoke such laws, then why didn’t it do so then?

  17. fiona64 says:

    WJ, you are doing nothing but setting up strawmen. If you cannot read and understand the 14th Amendment for yourself, I cannot help you. Nor can I help you to understand “for want of a substantial Federal question,” evidently. Perhaps Civics 101 would be of assistance to you.

    And for the record? The 14th Amendment was not in existence i 1787 or 1607. It was ratified in in 1868. Do try to keep up.

    You are simply not worth responding to, as you are merely trolling. Good day, sirrah.