Constant Readers,
Here's my last bit on gay marriage for awhile. Before I leave this subject, I want to address the issue of how this would go to the Supreme Court.
But let me take a minute to say that the quality of comments left by my brilliant readers on the prior posts makes me so proud! Y'all are wicked smaht!!
Hugs and kisses!
Moving on...
Right after the news broke that a couple of fancypants lawyers were taking the case of gay marriage to the federal courts, nine high-profile pro-same-sex marriage groups got together and issued a press release asking that the lawyers to Pretty Please NOT go the federal route. "It is by no means clear that a federal challenge to Prop. 8 can win now" it says. (Press release here: Download Don't go to the Supreme Court Press Release.)
Of course, there are good reasons to go the way of federal courts. For one, it is less of an expensive mess than one election or multiple elections. It also offers a finality that ballot propositions and regular laws do not - people and legislatures can giveth and can also taketh away. Courts don't do that as regularly - and if they change their minds, it's usually in favor of expanding rights, not shrinking them. Plus some people are just frustrated at dealing with the masses and want to get it over with already.
On the other hand, there are pitfalls to taking this matter to the federal courts.
1. The case will probably be dismissed in about 30 seconds
The case that was just filed is the Perry case and here's the Complaint: Download Federal Court Complaint
NOTE: Generally, to bring a case in federal court, you need to be complaining about federal law. In this case, the way the Perry plaintiffs are getting in the federal door is by arguing that their rights under the United States Constitution (forget the CA State Constitution) are being violated by California's different treatment of same and opposite marriage.
Back in 1972, after a Minnesota State Supreme Court held that it was okay to prohibit gay marriage, the plaintiffs appealed the case (Baker v. Nelson) directly to the United States Supreme Court, alleging, just like in Perry, that their federal constitutional rights were being violated.
NOTE: The plaintiffs in the Baker case could appeal directly to the U.S. Supreme Court because they were appealing the ruling of a State Supreme Court. In the present gay marriage case, the plaintiffs aren't appealing any State Supreme Court ruling - they are NOT saying that the Prop 8 case as wrongly decided. They are challenging the LAW in California, not a final state court ruling, so Perry has to go through lower courts first.
Okay, so, plaintiffs in the Baker case went directly to the US Supreme Court which, in a single sentence, dismissed the appeal “for want of a substantial federal question.”
This is very important.
Allow me to translate for the Supreme Court: Whether gay people are allowed to marry in Minnesota has nothing to do with the United States Constitution. In fact we think this case is so dumb that we're not even going to fully explain this ruling.
Of course that case is 37 years old and nowadays, the Supreme Court would probably think it's at least worth explaining why the case is being tossed out, but Baker is still the law. And it is binding on lower courts.
So, the District Court will probably throw out the Perry case because current legal precedent says: whether gay people are allowed to marry in California has nothing to do with the United States Constitution. (Remember: without a U.S. Constitutional claim, there's no right to be in federal court.)
If that happens: the plaintiffs will probably appeal that dismissal to the Ninth Circuit. If the Ninth Circuit throws it out, plaintiffs can appeal to the U.S. Supreme Court and try to get them to reverse the Baker ruling. (There's no guarantee that would actually happen, by the way.) A reversal by the Supreme Court would just reverse the rule that federal courts can't hear gay marriage claims. Nothing more.
If all that happens: Perry plaintiffs would have to go back to the District Court to litigate the heart of the case: whether, in marriage, separate but equal is constitutional.
2. Even if the federal courts can hear the case, there's no guarantee that the Supreme Court will
Let's assume the federal courts are ready to listen to the merits of the Perry case. The plaintiffs have a right to have the case heard in a District Court, and then a right to appeal that case to the Ninth Circuit. But that's where it stops. At that point the Supreme Court could choose to hear the case or not.
When it comes to federal court cases, the Supreme Court is more likely to take a case if two circuits disagree on the application of constitutional law. So, if the Ninth Circuit (where the Perry case would go - because the Ninth Circuit covers California) ruled one way on the right to gay marriage under the U.S. Constitution and, oh...lets say the Second Circuit (New York State) ruled a different way - like a parent with two squabbling kids, the Supreme Court can step in and settle the dispute.
Without that "split in the circuits" it is less likely that the Supreme Court would take the case.
If the Supreme Court chooses not to take the case: the Ninth Circuit ruling (last in time, highest court) would be the law in California - for better or worse.
A quick recap: While federal courts would initially have to toss out the case because of the Baker v. Nelson precedent, assuming the Supreme Court reverses itself, the law in California would be decided by the last, highest court to rule on the issue. Which would be the Ninth Circuit if the Supreme Court won't take the case.
3. If the Supreme Court does take the case...
Alright, lets assume that the U.S. Supreme Court reverses the Baker decision and decides to take the case (by the way, the year is like 2014) what would those guys say?
First, remember that this is years away. It is likely that Justice Stevens (he's 89) and Ginsburg (cancer scare) will retire here soon, so the leanings of their replacements would be important.
If the Supreme Court Rules in Favor of Gay Marriage: States would have to change their laws, constitutions and commandments to afford same-sex couples the right to marry.
If the Supreme Court Rules that Laws Treating Same and Opposite-Sex Couples Differently Are Constitutional: States would not then have to treat gay and straight couples differently.
U.S. Constitutional rights are a floor, not a ceiling, so states are free to afford MORE rights than the U.S. Constitution - just not fewer rights.
HOWEVER because the "rights" section of most state constitutions are lifted from the U.S. Constitution, state courts often look to the Supreme Court's interpretation of those clauses - the "equal protection" clause, for example - as instructive on state equal protection issues. So, while a negative ruling at the Supreme Court would not mandate discriminatory state laws, with state courts looking to the Supreme Court for advice, it would probably limit the extent to which gay marriage advocates can rely on state courts for protection.
Plus, states could roll back rights like adoption for gay couples without fear of a serious legal challenge.
Phew!
There you have it.
A number of things could happen here, but they won't happen soon.
ON A PERSONAL NOTE: When I was little, my parents were engaged in a bitter struggle to get custody of my siblings. (I won't get into the gory details here, but it was pretty bad.) The laws of the states of Georgia and Alabama caused so much confusion in my little brain that I decided I wanted to be a lawyer at the age of 8. (They were the only people who seemed to be able to understand the system.) What I'm trying to say is this: I write so much about this subject because I know how hard it is to feel like a family and have the state say it ain't so. Or that your family is second-class. And I know it's nothing compared with the frustration so many gay couples feel today. I only hope I've done this issue justice for now.
If you have questions, please feel free to email me.
-Melissa
Comments
Thank you for your tears, Melissa. But, also, thank you for looking at this objectively and explaining to us what exactly we're up against. Maybe it is too soon. State by state seems to be the answer -- for now.
Homosexuality is not a choice. Just like you don't choose the color of your skin, you cannot choose whom you are sexually attracted to. If you can, sorry, but you are not heterosexual, you are bi-sexual. Virtually all major psychological and medical experts agree that sexual orientation is NOT a choice. Most gay people will tell you its not a choice. Common sense will tell you its not a choice. While science is relatively new to studying homosexuality, studies tend to indicate that its biological.
(Replace *** with www)
***-news.uchicago.edu/releases/03/differential-brain-activation.pdf
***.newscientist.com/channel/sex/dn14146-gay-brains-structured-like-those-of-the-opposite-sex.html
Gay, Straight Men's Brain Responses Differ
***.foxnews.com/story/0,2933,155990,00.html
***.livescience.com/health/060224_gay_genes.html
***.springerlink.com/content/w27453600k586276/
blogs.discovermagazine.com/80beats/2008/06/16/172/
I agree with Michael. President Obama said that he felt marriage was between a man and a woman. I "thought" he said that because to have said anything else would have cost him the election; we all know that. But, you know, as each and every day passes and he places the issue on the back burner, I am beginning to believe more and more that he's basically a homophobe. Sure, he wants to stay in office so he's making statements like "You have a friend in the White house." I wonder. And keep in mind, too, it was primarily the blacks that voted for Prop 8 in California. Of all the people who should care about equal rights and ending discrimination. I'm afraid it's going to take longer than we want. It's going to be a state by state issue. But as the old adage goes: "All good things come to those who wait."
Case dismissed in 30 seconds? Wow, what a bold predication! Olson has argued 55 cases before US Supreme Court and won 75% of them – a record unmatched by almost anyone else. I would give him a little more credit than 30 seconds. Baker was decided decades ago when no same-sex marriage, not even civil union, existed in the entire world. I doubt that any judge would conclude today that Baker is such a definitive pronouncement on the constitutionality of a ballot initiative of a state whose supreme court had recognized same-sex marriage, that Olson’s suit should be dismissed in 30 seconds. It’s interesting to note that not even Prop. 8 proponents banked on Baker in their opposition to Olson’s preliminary injunction. It may be for the better that this is the author’s “last bit on gay marriage for awhile.”
@Rick - Olson may be a champ at the Supreme Court, but he has to get there first. And he still might. I thought I made it clear that the "30 second" dismissal can be appealed and ultimately the case can be heard by the supreme court. It will just take time and will be uncertain. The dismissal is an initial barrier. By the way a federal district court in Florida just followed the Baker precedent in dismissing a constitutional challenge to gay marriage. I also agree with you (and specifically wrote) that today's court would expound upon a reason to dismiss. And the fact that gay people had the right to marry and it was taken away is of no real consequence to the underlying issue of whether separate unions are constitutional per the US constitution.
Also "not even Prop. 8 proponents banked on Baker in their opposition to Olson’s preliminary injunction" - is incorrect. It is the very first argument they made in opposition to the Perry complaint.
Thanks for writing!
It’s very rare for a US Solicitor General to be involved—directly and substantially—in a federal suit at the very beginning of trial stage. As such, Olson’s role as lead counsel in the Prop. 8 challenge not only adds certain profile to the case, but also carries with it a lot of credibility on his legal arguments on Baker and other issues. This is especially true, given Olson’s credentials as a conservative jurist and Boies’ decision to co-lead the case as a liberal advocate. Moreover, this case is backed by both firms of Olson and Boies, which will provide significant resources throughout litigation.
Obviously, plaintiffs will not have guaranteed victory merely because Olson/Boies represent them. But this case is not just another gay marriage case like the one dismissed in Florida. The federal constitutionality of state’s ban on gay marriage is a serious, profound, and complex issue of our generation. When lawyers offer the public their analysis—and predication—of the fate
As other constitutional lawyers have noted, California's situation is unique. We have 18,000 same sex couples that are married while other same sex couples are denied those rights. This isn't the same issue as prior federal appeals regarding same sex marriage, and that is the reason that Baker is simply not precedent in the matter. The State Supreme Court found that the rights of same sex couples to marry was an inherent fundamental right, and then those rights were selectively eliminated from the state constitution by voters in clear animosity towards gays and lesbians. It's important to understand that Loving v. Virginia was decided on similar grounds.
I would not expect this case to be dismissed in 30 seconds. If the case succeeds at eliminating proposition 8, it's also entirely possible and plausible that decision will end at the 9th circuit and the Federal Supreme Court will simply refuse to hear any appeal since CA's position is unique.
Lastly, two responses to Melissa’s reply. First, regardless of whether Baker is sufficiently distinguishable, Judge Walker will do no justice if he uses Baker to dismiss the case without addressing the substantive issues of due process and equal protection. That is, after Walker explains whether or not Baker requires a summary dismissal, he will most likely discuss the merits of plaintiffs’ claims. Second, the fact that California recognized gay marriage before, but now only permits domestic partnership is, of course, consequential to the federal constitutional claim that such arrangement is the kind of “separate but equal” system forbid by Brown v. Board of Education.
@bluprntguy. It’s an entirely possible outcome that the Supreme Court might decline review if the 9th Circuit struck down Prop. 8. In that case, all 9th Circuit states will achieve marriage equality, although not on the national level. Thus, Olson’s federal challenge is meaningful and worthwhile.
I don't know what law school Melissa graduated from, if any, but federal courts are not bound by state Supreme Court decisions. Federal courts are bound by the decisions of their own federal court of appeals and the U.S. Supreme Court. "Baker v. Nelson" was not ruled on by the U.S. Supreme Court, because writ of cert was denied.
Steve, my bio clearly states that I am a Cornell Law School graduate. And the article clearly states that the USSC did NOT deny cert. It dismissed the appeal “for want of a substantial federal question.” Which is substantive and binding on lower federal courts.
Rick-
The case is likely to be dismissed very quickly for exactly the reason stated. The Baker precedent is binding upon all lower courts, and the argument being brought to the District Court would require a ruling that goes against the US Supreme Court... and that can't happen.
The attorneys arguing the case surely know this. They are just going through the motions of working it up to the Supreme Court. It will take years to get through the process.
Rick-
"But this case is not just another gay marriage case like the one dismissed in Florida. The federal constitutionality of state’s ban on gay marriage is a serious, profound, and complex issue of our generation."
Are you referring to Wilson v Ake? That was a Florida case that challenged the state's constitutional ban on same-sex marriages and the federal DOMA... the case was thrown out citing the Baker precedent (as have a number of other similar cases elsewhere).
Now that Judge Walker wants a speedy full-blown trial on the merits, we know that Olson’s case will not be dismissed in 30 seconds.
Baker, Baker, Baker... Whatever precedential value it may still hold, it’s far from a federal death sentence on gay marriage – not in California at least.
@Rick
You know, I am pretty sure the 30 seconds comment was just to emphasize a point. Not matter how much time Judge Walker wants to waste on the case, the end result will be the same- he is bound by precedent from the Supreme Court and can not issue a ruling that claims the California amendment violates the the US Constitution. ONLY the Supreme Court can do that, and they first have to overrule Baker.
What Walker is doing is allowing the sides to present their arguments so that everything is nice and tidy as the case moves up the system. with the argument presented he has no other option but to dismiss (unless he wants to be very embarrassed by the Supreme Court).
Um, what James said. He is correct.
Thank you, James!
@ James.
Why even try to have everything “nice and tidy” if Baker compels the lower court to dismiss the case out of hand?
My problem with the “30 seconds” pronouncement is not that Baker is irrelevant, but rather that the author has seemingly overread the case by giving it too much credit without analyzing those starkly unique circumstances in the Prop 8 case which raise issues not “necessarily decided” in Baker. Consequently, my reaction to the “30 seconds” comment is simply to highlight my disappointment that the author’s legal opinions are not as thoughtful as they can be.
Rick-
The purpose of making it "nice and tidy" is for exactly the reason that Judge Walker admitted in court. He knows that the issue has not been fully addressed in a federal court, and he also knows that he will not have final say on the matter. Judge Walker wants to have the issues on the table so that the next court in line has a full record to refer to.
The Baker precedent absolutely applies, and will most certainly be addressed by Walker in his eventual dismissal of the case. The core of the argument is that the new amendment violates the 14th Amendment of the US Constitution, and that is precisely what the Baker precedent addresses. State laws restricting same-sex marriage do not violate the US Constitution and there is no federal issue in question. It is an issue the Supremes have left for states to resolve among themselves. Judge Walker admitted that the case will eventually go to the Supremes... they are the only ones with authority on the issue in federal court.
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