Tag Archives: Ninth_circuit

Implications of the Ninth Circuit Ruling on Prop 8 for Washington?

Today, the Washington legislature passed a bill legalizing same-sex marriage; the bill is now headed to the Governor’s desk, and Governor Christine Gregoire has already expressed her support for the bill.[1]  This bill, once it is enacted into law by the Governor’s signature, could test the limits of Judge Reinhardt’s narrow decision.  As discussed on this blog, and elsewhere, the decision rests on the elimination of a right previously granted.  After the California Supreme Court determined that marriage is a fundamental right guaranteed to all, Proposition 8 stripped one segment of the population of that right without providing any legitimate rationale.  For Reinhardt, the short length of time that the right was in place (after the 2008 ruling on marriage and before 2009 ruling upholding Proposition 8) was irrelevant.  Once a right is granted, eliminating that right must have a rational basis.

On its face, it would seem that the reasoning in the Prop 8 case would apply here and even if the law is challenged at the ballot box, there is a good chance that the district and circuit courts would overturn based upon Perry v. Brown. However, that may not be the case.  If Gregoire signs the bill into law, the opponents have 90 days to stop promulgation. In the interim 90 days, the opponents of the bill must gather the requisite number of signatures (over 100,000) to place the issue on the ballot.  In other words, there is a cushion preventing Washington from getting caught in the granted then stripped reasoning of the Ninth Circuit.  Washington’s constitution requires that no law or ballot measure be enacted for 90 days after the enacting session adjourns.  Based upon this constitutional requirement, the law could be challenged before it is fully enacted.

However, the current session of the Washington legislature is set to end in early March of 2012.  Ninety days later puts us somewhere in early to mid June.  The Washington constitution provides that ballot measures will be placed on the next general election ballot.[2]  The next general election would be in November of 2012, leaving a scant few months where the law can be enacted before a ballot measure could repeal it.[3]  Therefore, Reinhardt’s analysis could apply.  The catch is whether the filing of the initiative before enactment affects whether the right was ‘granted’.  Given the convoluted circumstances providing that right to gay couples in California[4], this interim period would not likely change Reinhardt’s reasoning.

What about other judges on the Ninth?  Judges not considered “liberal lions”.[5] Clearly there will be a signature gathering effort, and the low bar of 120,000+ signatures will likely be reached.  The question remains whether there is a constitutional attempt to provide a way to prevent enactment?  Does the requirement to wait until the next election given the holding in the Prop 8 case vitiate that attempt?


[2] This analysis is based upon the wording of the Washington Constitution only.

[3] Note that Washington voters voted for a domestic partnership measure and polls show about 55% support a gay marriage law.  http://www.guardian.co.uk/world/2012/feb/09/washington-state-gay-marriage-bill?newsfeed=true

[4] The ruling in the Marriage cases came from gay married couples appealing a CA Supreme Court order requiring the Mayor of San Francisco to follow Proposition 22, banning same sex marriage.  In that appeal, the California Supreme Court found that marriage is a fundamental right for all under the California constitution.  Prop 8 followed creating the interim period where CA granted the right to marriage.

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Will the Ninth Circuit Ruling on Proposition 8 Survive?

As reported by the Guardian, the chair of the National Organization for Marriage noted that “The ninth circuit is the most overturned circuit in the country, and Stephen Reinhardt, the author of today’s absurd ruling, is the most overturned federal judge in America.”[1]

Judge Reinhardt seems well aware of this fact as you read the opinion.  He takes the time to delineate why the instant case does not require the panel to delve into the broader constitutional questions regarding same sex marriage.  He frames the case this way: California allowed both same and opposite sex couples to marry under state law. Proposition 8 “stripped” same sex couples of the use of the term ‘marriage’.  To treat these two groups differently now, since they were treated equally under the law, there must be a rational interest served.  The majority of the panel finds no legitimate interest served in this change in status.

Focusing on the rescission of the ability to marry, the panel links this case with Romer v. Evans (1996) and tries to distance itself from the larger debate regarding the granting of the right to same sex marriage.  Can this linkage and the narrow nature of the opinion protect the ruling from reversal?

Romer was decided in 1996 and Justice Scalia wrote a scathing dissent from Kennedy’s majority opinion. Justice Thomas and Chief Justice Rehnquist joined this opinion.  The Court has changed significantly since this case.  Chief Justice Roberts now occupies the center seat.  Justice Alito has replace Justice O’Connor and Justice Sotomayor and Kagan replaced Justices Souter and Stevens respectively.  While the line-up in terms of liberal and conservative is not that different, it is a difference of degree.  And it may be that Justice Alito is a wild card here.  Where Justice O’Connor signed onto the proposition that a law could not rescind a right to one group and not another, Justice Alito has shown that he is willing to restrict fundamental rights where other conservative justices are not (Snyder v. Phelps 2010).  The majority from Romer, then, is likely down to 5.  Provided that the ‘liberal’ wing of the Court votes to uphold the ruling, it comes down to Justice Kennedy.  Will his reasoning from Romer resonate?  In Romer, the rights rescinded were central to democratic participation.  Is this a distinction that will make a difference to the eminent justice?  After all, Reinhardt’s argument cuts both ways.  Since Prop 8 only eliminated the ability for same sex couples to use the term marriage and did not rescind any other rights granted under California law, and that law currently provides equivalent rights to spouses and partners, Reinhardt says it must be void.

However, if the only thing that was lost was the nomenclature, could Kennedy find that there really isn’t any tangible loss?  All rights remain in place and a rational basis for maintaining this small modicum of difference may be easy to manufacture.  It remains open to question whether Reinhardt’s legalistic gymnastics will keep this major Ninth Circuit ruling off the SCOTUS chopping block.

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