Whence Next, Best Men?

Two steps forward, one step back and then waiting in the wings may best describe the next moves for Proposition 8.

U.S. District Chief Judge Vaughn R. Walker ruled Aug. 4 that Prop 8, California’s ban on same-sex marriage, is unconstitutional. That led to hasty predictions that the issue was fast closing in on the U.S. Supreme Court.

But both sides may have to wait years for a final decision on the matter, according to Susan Frelich Appleton, JD, the Lemma Barkeloo and Phoebe Couzins Professor of Law at Washington University in St. Louis.

Supporters of the ban already have requested a stay, pending the outcome of another round of arguments before the U.S. Court of Appeals for the 9th Circuit. After a panel of three 9th Circuit judges decides the case, it could get reheard “en banc,” or by a larger group in the same circuit.

The next step after the 9th Circuit is the U.S. Supreme Court, and both sides have vowed to take Perry v. Schwarzenegger to the nation’s top judges.

But the U.S. Supreme Court may not agree to address the constitutionality of bans on same-sex marriage until the issue has been decided by one or more additional federal courts of law — which may produce different outcomes — Appleton says.

“Sometimes a division among the courts will occur, and such splits make an issue more likely to be heard by the U.S. Supreme Court,” Appleton says.

STRATEGIC SCENARIO COULD MEAN QUICKER DECISION

On the other hand, it’s possible that the high court could take the case immediately after the 9th Circuit ruling. While Gregory Magarian, JD, Professor of Law at WUSTL, agrees that the U.S. Supreme Court may very well postpone a decision until further rulings are made, he says the justices could also proceed quickly as a strategic move.

“If we assume that the justices know their minds on this issue, then the justices who believe they will prevail may vote to take the case in order to resolve the issue now, while the numbers favor their preferred outcome,” Magarian says. “Supreme Court rules require only four votes to take a case.”

Whether it comes sooner or later, the issue warrants the U.S. Supreme Court’s attention, Magarian says.

Opponents of Walker’s ruling complain his decision amounts to “judicial activism” because it overturned an action approved by the democratic process. But Magarian points out that this argument dodges the substance of the issue.

He compares the voters’ opposition to same-sex marriage to the white majority “democratically” keeping black children in segregated schools, and the male majority “democratically” denying women equal treatment under the law.

“Often, the people ‘democratically’ deny dissidents and rabble-rousers the right to express themselves,” Magarian says. “In all of those circumstances, we welcome the courts’ intervention — at least in hindsight. “

RULING BOOSTS EQUALITY IN ALL MARRIAGES

In his decision, Walker called Prop 8 “unconstitutional under both the due process and equal protection clauses” of the 14th Amendment.

While it was two same-sex couples who filed the lawsuit, arguments against it invoked gender equality as well as gay and lesbian rights.

In his opinion, Walker made more than a dozen references to changes over time regarding gender roles in marriage. Noting that marriage once served to uphold strict gender roles such as women raising children and running a household, and men providing for the family, he pointed out that the state of California has abolished marital obligations based on gender — with no harm to the institution.

“One way to analyze Proposition 8 treats it as sexual-orientation discrimination; another way considers it as gender discrimination,” Appleton says. “Under Proposition 8, a man can marry only a woman but not a man, for example, so access to marriage turns on the combined genders of the would-be spouses.

“Judge Walker’s approach promotes marriage equality and equality in marriage, for all women and men, of any sexual orientation,” she says.

LENGTHY RULING EXPLORES SINGLE SENTENCE

Proposition 8 is only 14 words long: “Only marriage between a man and a woman is valid or recognized in California.”

The measure landed on the ballot after the California Supreme Court decided in May 2008 that same-sex couples had a right to marry. Fifty-two percent of California voters voted for the proposition in November 2008.

Its approval prompted two couples to file a lawsuit, alleging Prop 8 violates their right to due process and equal protection guaranteed under the 14th Amendment of the U.S. Constitution. Previous victories for same-sex marriage were decided under state constitutional provisions.

Walker’s 138-page ruling provides a comprehensive look at the federal constitutional issues involved, and is sure to be cited in cases even beyond the 9th Circuit.

“Judge Walker’s thorough review of the evidence and meticulous findings of fact leave Proposition 8 without a constitutionally permissible or legally justifiable foundation,” Appleton says.

Appleton is a nationally known expert on family law, and has written extensively about non-traditional families. Magarian has a primary focus on constitutional law in his research and teaching .

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