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.
Without Prejudice 