Experts: Prop 8 ruling may dodge high court

9th Circuit panel crafts its decision striking down California amendment narrowly, avoids question of whether other states can ban marriage

Prop8

DAY OF DECISION | Supporters of marriage equality react outside the courthouse after a federal appeals court declared California's ban on same-sex marriage unconstitutional on Tuesday, Feb. 7 in San Francisco. (AP Photo/San Francisco Chronicle, Lea Suzuki)

LISA LEFF  |  Associated Press

SAN FRANCISCO — Conservative critics like to point out that the federal appeals court that just declared California’s same-sex marriage ban to be unconstitutional has its decisions overturned by the U.S. Supreme Court more often than other judicial circuits, a record that could prove predictive if the high court agrees to review the gay marriage case on appeal.

Yet legal experts seemed to think the panel of the San Francisco-based 9th U.S. Circuit of Appeals that struck down the voter-approved ban on Tuesday, Feb. 7 purposefully served up its 2-1 opinion in a narrow way and seasoned it with established holdings so the Supreme Court would be less tempted to bite.

The appeals court not only limited the scope of its decision to California, even though the 9th Circuit also has jurisdiction in eight other Western states, but relied on the Supreme Court’s own 1996 decision overturning a Colorado measure that outlawed discrimination protections for gay people to argue that the voter-approved Proposition 8 violated the civil rights of gay and lesbian Californians.

That approach makes it much less likely the high court would find it necessary to step in, as it might have if the 9th Circuit panel had concluded that any state laws or amendments limiting marriage to a man and a woman run afoul of the U.S. Constitution’s promise of equal treatment, several analysts said.

“There is no reason to believe four justices on the Supreme Court, which is what it takes to grant (an appeal) petition, are champing at the bit to take this issue on,’’ University of Michigan law school professor Steve Sanders said. “The liberals on the court are going to recognize this was a sensible, sound decision that doesn’t get ahead of the national debate … and I don’t think the decision would be so objectionable to the court’s conservatives that they would see a reason to reach out and smack the 9th Circuit.’’

Lawyers for the coalition of religious conservative groups that qualified Proposition 8 for the November 2008 ballot and campaigned for its passage said they have not decided whether to ask a bigger 9th Circuit to rehear the case or to take an appeal directly to the Supreme Court.

However, they said they were optimistic that if the high court accepts an appeal, Tuesday’s ruling would be reversed.

“The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned,’’ Andy Pugno, the coalition’s general counsel, said in a fundraising letter to Proposition 8’s supporters. “Ever since the beginning of this case, we’ve known that the battle to preserve traditional marriage will ultimately be won or lost not here, but rather in the U.S. Supreme Court.’’

Regardless of their next steps, gay and lesbian couples were unlikely to be able to get married in California anytime soon. The 9th Circuit panel’s ruling will not take effect until after the deadline passes in two weeks for Proposition 8’s backers to appeal to a larger panel, and the earliest the Supreme Court could consider whether to take the case would be in the fall.

Judge Stephen Reinhardt, who was named to the 9th Circuit by President Jimmy Carter and has a reputation as the court’s liberal lion, wrote Tuesday’s 80-page majority ruling with concurrence from Judge Michael Daly Hawkins, an early appointee of President Bill Clinton. Judge Randy Smith, who was the last 9th Circuit judge nominated by President George W. Bush, dissented.

In tailoring the decision to apply only to California, Reinhardt cited two factors that distinguish Proposition 8 from the one-man, one-woman marriage laws and constitutional amendments in the other 9th Circuit states and that he said demonstrate that it “serves no purpose, and has no effect, other than to lessen the status and humanity of gays and lesbians.’’

The first is that California since 2005 has granted same-sex couples all the rights and benefits of marriage if they register as domestic partners.

The second is that five months before Proposition 8 was enacted as a state constitutional amendment, the California Supreme Court’s Court had legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman. California is the only state, therefore, where gays have won the right to marry and had it stripped away.

The amendment’s “singular’’ work of denying gay Californians the designation of marriage while leaving in place domestic partnerships proves that Proposition 8 deprives same-sex relationships of society’s dignity and respect, Reinhardt wrote.

“A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not,’’ he said. “We are excited to see someone ask, ‘Will you marry me?’, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly, it would not have the same effect to see, ‘Will you enter into a registered domestic partnership with me?’”

The opinion goes on to draw parallels between California’s same-sex marriage ban and the Colorado opinion the Supreme Court struck down on a 6-3 vote after concluding that it was based on moral disapproval of gays. Justice Anthony Kennedy wrote the majority opinion in that case, known as Romer v. Evans, and if the court agrees to take up Proposition 8, the similarities could hit the “sweet spot’’ that might persuade him to side with four other justices in upholding the 9th Circuit, said Douglas NeJaime, an associate professor at Loyola Law School in Los Angeles.

“Everyone is looking to Justice Kennedy, assuming that Justice Kennedy would not issue a sweepingly bad decision for gay rights, and yet people don’t know if he is ready to go so far as to say nationwide same-sex couples can get married,’’ NeJaime said. “I think the opinion evidences a real savviness about the posture of this case and its position in the trajectory of a national movement for marriage for same sex couples.’’

Smith, the lone dissenting judge, disagreed that Proposition 8 necessarily served no purpose other than to treat gays and lesbians as second-class citizens. He pointed out that its backers claimed it could serve to promote responsible child-rearing among opposite-sex couples, and said courts were obligated to uphold laws in the face of civil rights challenges unless they were “clearly wrong, a display of arbitrary power (or) not an exercise of judgment.’’

“There is good reason for this restraint,’’ Smith said.

This article appeared in the Dallas Voice print edition February 10, 2012.

—  Kevin Thomas

Gavin Newsom’s win keeps political future afloat

JUDY LIN | Associated Press

SACRAMENTO, Calif. — He’s best-known for opening San Francisco’s City Hall to same-sex weddings and was once thought to be too liberal even for the bulk of California. But Gavin Newsom’s decisive Nov. 2 win as the state’s next second-in-command has rekindled prospects that he may one day be a viable candidate for governor or U.S. Senate.

The 43-year-old San Francisco mayor won handily over Republican Abel Maldonado in the race for lieutenant governor. While his new role is viewed largely as ceremonial, it marks a comeback of sorts for the well-coiffed politician.

Two years ago, Newsom was a focal point of the Proposition 8 campaign to ban gay marriage. One ad aired by the initiative’s supporters showed a videotaped clip of Newsom’s impassioned exclamation in 2004 that the door was open to gay marriage, “whether you like it or not.”

Voter approval of Proposition 8 that November raised questions about whether Newsom was electable statewide or would be too closely associated with gay marriage.

In an interview with The Associated Press following the election, Newsom said his win was a testament that Californians can disagree with their candidates on some issues but still vote for them.

“It was an interesting intellectual question that now I believe to some degree has been answered. And I’m very proud of that,” he said. “It’s nice to know that you can survive that in a political sense. Even if people disagree with you —and I know so many people did and do — people still will vote for you because on other issues, they perhaps have more confidence that I’m doing what I think is right.”

Newsom will transition into a job that functions as the state’s chief executive when the governor is away and serves on economic development and environmental commissions as well as two public university governing boards.

But the post will also help keep his political prospects afloat with a possible bid to succeed Gov.-elect Jerry Brown or perhaps give him a shot at the U.S. Senate.

“I think we’re back on the ‘Gavin Newsom has a bright future’ sort of swing,” said Corey Cook, an assistant professor of political science at the University of San Francisco. “He’s been up and down several times in the last seven years, and it seems like this is a pretty convincing victory. I think a lot of the folks who had criticized him and written his political obituary are sort of maybe rethinking that position right now.”

Newsom, of course, will have to be patient.

For starters, it’s uncertain whether Brown, 72, would seek a second term. In response to suggestions that he has told some Democrats privately he would only serve one term, Brown said “I’ve never made that commitment” and noted that his grandmother lived to 96.

And even if Brown decides not to seek re-election, Newsom will likely find himself jostling with other Democratic hopefuls for the state’s top job.

Newsom might also look to the Senate if Dianne Feinstein decides to leave, but it’s a move her political consultant dismissed, saying the senator has started fundraising.

“That’s not happening. She’s running,” said Bill Carrick, a Los Angeles-based Democratic consultant with decades of experience in state and national politics.

Carrick said Newsom will have to get creative as lieutenant governor and use the office to get the public to see him in a multidimensional way, beyond merely being a strong proponent of gay rights.

Newsom demurs on his political future, saying he’s just focused on repairing the state: “I’m not thinking beyond it,” he said.

Newsom said he plans to avail himself to the next governor as Democrats pledge to work on returning power to the local level. He says he’s in a unique position, having served as mayor of a county for seven years, to help the governor negotiate the budget with lawmakers and contracts with labor unions. He says he can also serve as a conduit between the state and local governments.

“I really think we have an opportunity to redefine the relationship between the two offices, and that’s not me getting ahead of myself and that’s not me playing above my job description. It’s not that. It’s just in a supportive role, as needed and filling in blanks and just wanting to be of help in a substantive way,” Newsom said. “I have no interest in spending time with ceremonial parts of the job.”

Newsom, however, has been accused of grabbing headlines as mayor while failing to focus on the details of running government. San Francisco Supervisor Ross Mirkarimi, who has challenged Newsom over police foot patrols in high-crime neighborhoods, said the mayor has sometimes been too insular.

“At times I thought it closed him to debate and the spirit of us working together,” Mirkarimi said. “I think he’s a big-picture kind of guy and I like that. But it means he also needs the right team to implement the brass tacks, which sometimes I’ve been critical of not happening.”

Despite his concerns, Mirkarimi said he believes Newsom will be able to use the lieutenant governor’s seat as a springboard to higher office.

“Newsom will figure out when it’s time to shine and when it’s time to be a silent partner,” he said.

—  John Wright

AG Brown, couples urge speedy return to gay marriages

PAUL ELIAS and LISA LEFF  |  Associated Press

SAN FRANCISCO — The attorneys who successfully sued to strike down California’s same-sex marriage ban have joined state Attorney General Jerry Brown in urging a federal appeals court to quickly allow gay marriages to resume in the state.

Theodore Olson and David Boies, the high-profile lawyers representing two couples, told the appeals court that same-sex couples are being hurt every day Proposition 8 is enforced and should not be denied their civil rights while the ban’s sponsors pursue an appeal of this month’s decision overturning the 2008 measure that was approved in a referendum.

“Indeed, the only harm at issue here is that suffered by Plaintiffs and other gay and lesbian Californians each day that Proposition 8′s discriminatory and irrational deprivation of their constitutional rights remains in force,” the lawyers argued in a filing late Friday, Aug. 13.

Brown, who is the Democratic nominee for governor, said in a separate filing that there was no reason for the 9th Circuit to grant the emergency stay request because state and local agencies would suffer no harm by being required to sanction same-sex marriages. County clerks across the state already are gearing up to do so next week, he said.

The swiftly drafted legal papers came in response to efforts by same-sex marriage opponents to get the 9th U.S. Court of Appeals to block a lower court judge’s ruling striking down Proposition 8 as unconstitutional from taking effect this week. If the 9th Circuit refuses to intervene, it would clear the way for same-sex couples to marry starting after the close of business Wednesday, Aug. 18.

Protect Marriage, the coalition of religious and conservative groups that sponsored Proposition 8, has appealed U.S. District Judge Vaughn Walker’s Aug. 4 ruling that found the voter-approved law unconstitutional. After Walker said on Thursday, Aug. 12 that he planned to finalize his ruling on Wednesday at 5 p.m., the group’s lawyers asked the 9th Circuit to prevent any gay marriages while the appeal is pending.

They argued the appeals court should grant an emergency stay “to avoid the confusion and irreparable injury that would flow from the creation of a class of purported same-sex marriages.”

Depending on how the 9th Circuit rules, same-sex couples could get married in California as early as next week or they would have to wait while the appeal works its way through the court and potentially the U.S. Supreme Court as well.

Walker, however, has expressed doubts over whether Protect Marriage has the right to challenge his ruling if neither the attorney general nor the governor elect to do so. Both officials refused to defend Proposition 8 in Walker’s court and have since said they see no reason why gay couples should not be able to get married now.

Although he allowed the group to intervene in the trial, the judge said the appellate court would have to make its own determination that same-sex marriage opponents would be injured if gay couples could wed, a claim Walker explicitly dismissed in his decision invalidating Proposition 8.

The ban’s backers addressed the potential for such a roadblock in their emergency stay request, saying California’s strong citizen initiative law permits ballot measure proponents to defend their interests if state officials will not.

“Proponents may directly assert the state’s interest in defending the constitutionality of its laws, an interest that is indisputably sufficient to confer appellate standing,” they said.

Theodore Boutrous, a lawyer with the legal team representing same-sex couples, said that keeping Protect Marriage from moving forward with an appeal was not necessarily the top priority of the plaintiffs.

“We believe that Chief Judge Walker’s ruling last week on the merits provides a powerful record on appeal, and we want the appellate courts to address the merits of Proposition 8,” Boutrous said. “The standing issue that Chief Judge Walker identified provides another potential weapon in our arsenal that will be part of the appellate arguments.”

California voters passed Proposition 8 as a state constitutional amendment in November 2008, five months after the California Supreme Court legalized same-sex unions and an estimated 18,000 same-sex couples already had married.

Five states — Massachusetts, Connecticut, Vermont, New Hampshire and Iowa — and the District of Columbia have legalized same-sex marriage. New York and Maryland recognize those marriages even though same-sex couples can’t wed within their borders. However, the federal government doesn’t recognize same-sex marriage, nor do the vast majority of states.

—  John Wright