Proposition 8 Is Unconstitutional, but Not Because the Ninth Circuit Said So: the Equal Protection Clause Does Not Support a Legal Distinction Between Denying the Right to Same-sex Marriage and Not Providing it in the First Place

• Publication year: 2012

Washington Law ReviewVolume 36, No. 2, WINTER 2013

NOTE

Proposition 8 Is Unconstitutional, But Not Because the Ninth Circuit Said So: The Equal Protection Clause Does Not Support a Legal Distinction Between Denying the Right to Same-Sex Marriage and Not Providing It in the First Place

Nathan Rouse(fn*)

I. INTRODUCTION

In 2008, advocates for marriage equality(fn1) lost a hard-fought and contentious campaign battle in California: voters approved Proposition 8 and eliminated the right to same-sex marriage.(fn2) The battle, however, had only begun. Two same-sex couples whose plans to marry had been cancelled by the passage of Proposition 8 sued the state in federal district court, maintaining that Proposition 8 violates the Constitution.(fn3) They won. The district court issued a landmark decision in which the court broadly held that banning same-sex marriage violates both the Equal Protection Clause and a person's fundamental right to marry.(fn4) Then, four and a half years later, the Ninth Circuit Court of Appeals affirmed the district court's ruling-but on significantly narrower legal grounds.(fn5) Now, the Supreme Court has granted certiorari.(fn6)

This Note is about the Ninth Circuit's decision. In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court's decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose.(fn7)

But U.S. Supreme Court precedent does not support the narrowness of the Ninth Circuit's holding in Perry because the difference between withdrawing and withholding the right to same-sex marriage is not legally significant. Rather, under the U.S. Supreme Court's equal protection jurisprudence, any denial of the right to same-sex marriage is unconstitutional. The Ninth Circuit interpreted Romer v. Evans and U.S. Department of Agriculture v. Moreno to mean that taking away a right is legally distinct from not providing a right in the first place.(fn8) But these cases do not stand for this proposition. Instead, Romer and Moreno stand for the proposition that animus toward a specific group of people, on its own, is never a rational basis for a law.(fn9) While the government had indeed withdrawn a previously recognized right in both cases, this fact was significant only to the extent that it provided evidence of animus.(fn10) As such, the Ninth Circuit was correct in concluding that Proposition 8 lacks a rational basis and can be explained only by animus.(fn11) The court, however, was incorrect in creating a withdrawal-withholding distinction that limits the applicability of its decision.

The Ninth Circuit should have held that the Equal Protection Clause prohibits any denial of the right to same-sex marriage, regardless of whether it is withdrawn or withheld. As the decision stands, Perry only provides legal protection to same-sex marriage in the event that a state has granted the right, but then takes it away.(fn12) Perry is unnecessarily meaningless in states that have never allowed same-sex marriage.(fn13) Accordingly, the Supreme Court should affirm the Ninth Circuit, but disregard its reasoning. The Court should instead adopt the district court's reasoning.

Part II provides background information on the facts and district court bench trial that led to the Ninth Circuit's decision in Perry. Part III then summarizes and explains the decision. Part IV argues that the U.S. Supreme Court's equal protection jurisprudence does not support the narrowness of the Perry court's holding. Part V concludes.

II. PROPOSITION 8 AND THE DISTRICT COURT'S DECISION

On November 4, 2008, California voters eliminated the right to same-sex marriage by approving Proposition 8.(fn14) The passage of Proposition 8, which overturned In re Marriage Cases (the Marriage Cases), a California Supreme Court decision that had legalized same-sex marriage, (fn15) ended a 141-day period during which thousands of same-sex couples married.(fn16) The following section tells two stories: how Proposition 8 came to pass and how a federal district judge later struck it down.

A. Background

The legality of same-sex marriage has a tumultuous history in California. In 1999, California became the first state to legislatively extend legal status to same-sex couples when it enacted a domestic partnership registry.(fn17) But the following year, not long after President Bill Clinton signed the Defense of Marriage Act (DOMA),(fn18) California enacted a nearly identical law.(fn19) Proposition 22, a successful voter initiative, statu-torily restricted the availability of marriage to heterosexual couples.(fn20) Four years later, San Francisco Mayor Gavin Newsom deliberately disobeyed the law and ordered the county clerk's office to grant marriage licenses to all couples, regardless of sex.(fn21) The clerk's office followed the mayor's orders until, several weeks later, the California Supreme Court directed the Mayor to comply with state law.(fn22)

Days later, the City of San Francisco initiated a lawsuit in state court seeking a declaratory judgment that Proposition 22 had violated the state constitution.(fn23) The trial court agreed,(fn24) but the California Court of Appeals did not.(fn25) The issue appeared before the California Supreme Court the following year.

1. The California Supreme Court's Legalization of Same-Sex Marriage in the Marriage Cases

In a 4-3 decision issued May 15, 2008, the California Supreme Court declared that Proposition 22, and any denial of the right to same-sex marriage, was prohibited under its state constitution, thus legalizing same-sex marriage in California.(fn26) The court invalidated Proposition 22 after determining that all Californians have a fundamental state constitutional right to marry whomever they please.(fn27) Moreover, although domestic partnership status provided an avenue to receiving the same substantive legal rights enjoyed by married couples,(fn28) attaching a separate designation to that bundle of rights was a violation of the Equal Protection Clause.(fn29) Notably, the court applied strict scrutiny, not rational basis review or even intermediate scrutiny, in its equal protection analysis.(fn30) Heightened review was appropriate, the court explained, because Proposition 22 blocked a historically marginalized group from obtaining a significant legal right on the basis of a characteristic similar to gender and race.(fn31)

In the months following the Marriage Cases, around 18,000 same-sex couples got married in California.(fn32) But for those celebrating the court's landmark decision, the celebration did not last long. Even before the high court reached its decision in the Marriage Cases, opponents of same-sex marriage were already on their way to overturning it.(fn33)

2. Campaign and Passage of Proposition 8

In October 2007, months before the Marriage Cases, Protect Marriage, the same group responsible for Proposition 22, filed another initiative. (fn34) This time, however, rather than seeking to amend California's family laws as Proposition 22 did, Protect Marriage sought to amend the state constitution.(fn35) The California Marriage Protection Act, or Proposition 8 as it later came to be known, proposed adding a section to the state constitution expressly providing that California only recognizes marriages between a man and a woman.(fn36) To qualify for the ballot, Proposition 8 needed enough signatures from registered voters to exceed eight percent of the number of votes counted in California's most recent gubernatorial election.(fn37) At the time, at least 694,354 were needed.(fn38)

Just weeks before the state supreme court struck down Proposition 22, supporters of Proposition 8 submitted 1,120,801 signatures, far exceeding the requisite amount to qualify for the November 2008 ballot.(fn39) In the months to come, as thousands of same-sex couples exercised their long-awaited right to marry, Protect Marriage carried out a massive statewide campaign to eliminate that right.(fn40) Religious and conservative groups quickly mobilized to rally support for the initiative in Califor-nia.(fn41) As they did so, organizations across the country donated millions of dollars to the effort and the initiative drive was quickly on its way to becoming the most expensive election fight over a social issue in U.S. history.(fn42) Offensive television commercials and billboards spread quickly throughout the state, using bigoted stereotypes and false information to encourage voters to ban same-sex marriage. (fn43) Supporters of marriage equality fought back against the initiative and garnered similar national support,(fn44) but their efforts were ultimately unsuccessful. Due to Protect Marriage's substantial support from powerful religious organizations,(fn45) and a deficit in public support for marriage equality,(fn46) Proposition 8 passed on November 4, 2008, with 52% of the vote.(fn47)

While many across the country celebrated President Obama's historic election...