Prop 8: One Landmark Decision Begets Another

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February 10, 2012

Cross-posted on the Huffington Post.

One of the geniuses of our nation's model of jurisprudence is that it is built on a system of precedent. The decision in one lawsuit not only resolves that case but guides and, in some cases, controls future lawsuits that raise similar issues. This principle of "stare decisis" helps ensure even-handedness by eliminating ad hoc outcomes and causing like issues to be resolved in like ways. It also ensures that the accumulated wisdom of past decisions determines the results in those that follow.

The holding by the federal Ninth Circuit Court of Appeals in Perry v. Brown that California's Proposition 8 is unconstitutional is a masterful example of why this system of decision-making is so brilliant. Any fair-minded person who reads the majority opinion would have to admit that it is squarely and fully based on precedent, not politics. When politicians attack Perry or any judicial decision that doesn't accord with their own views, claiming those decisions are the product of "rogue" judges "substituting their own political views" for law, they reveal either a frightening misunderstanding or a shocking misrepresentation of the American legal system. Such demagoguery ignores that judges are bound by precedent. The Ninth Circuit judges who decided Perry were simply doing their job--in this case, quite astutely--of following controlling precedent in order to enforce the legal protections the Constitution safeguards for us all.

The precedent on which the Perry decision most heavily rests is the Supreme Court's 1996 opinion in Romer v. Evans, a ruling the Perry majority cites more than two dozen times--and for good reason. As the opinion in Perry points out, Proposition 8 is "remarkably similar" to Colorado's Amendment 2, which the Supreme Court held to be unconstitutional in Romer. Because of those similarities, as the Ninth Circuit explained in Perry, the Romer precedent's reasoning "governs" the analysis of whether Prop 8 is constitutional and "compels" the result the majority reached. Politics do not.

In Romer v. Evans, Lambda Legal, along with the ACLU and some of Colorado's top lawyers, successfully challenged an amendment to the Colorado Constitution that prohibited the state and its political subdivisions from providing lesbians, gay men and bisexuals any legal protection against discrimination on the basis of sexual orientation. As the Supreme Court explained in Romer, Colorado's Amendment 2 involved government discrimination of an "unusual character." Rather than being "a law of general applicability," Amendment 2 "withdr[ew] from homosexuals, but no others, specific legal protection ..., and ... forb[ade] reinstatement of these laws and policies" except by "enlisting the citizenry of 'the state to amend the State Constitution'" for a second time. Amendment 2 thereby "single[d] out a certain class of citizens for disfavored legal status."

California's passage of Prop 8 closely parallels Colorado's passage of Amendment 2. Both state constitutional amendments involved backlashes by an electoral majority to civil rights advances by the state's gay minority. Rather than modify California's marriage law in some general fashion, Proposition 8 amended the California Constitution in an unusual way, withdrawing from gay people, but no others, the right to legally marry. Like Amendment 2, Prop 8 barred legislatorsfrom ever affording that right to the gay minority. Like Amendment 2, Proposition 8 "singled out [lesbians and gay men] for disfavored legal status," consigning same-sex couples to the second class institution of registered domestic partnerships and reserving to only heterosexuals the right to enter the privileged status of marriage. As the Perry majority opinion explains, quoting fromRomer, "both Proposition 8 and Amendment 2 'carve[d] out' rights from gays and lesbians alone."

The centrality of Romer to resolution of the legal questions raised in Perry was first discussed at length in a friend-of-the-court (or "amicus") brief that Lambda Legal, the National Center for Lesbian Rights (NCLR), and the ACLU of Northern California submitted to the trial court in Perry. In expanding on the analysis in a further amicus brief to the Ninth Circuit also joined by Gay & Lesbian Advocates & Defenders, we pointed out that the Supreme Court in Romer explained that certain laws are unconstitutional because they deny equal protection of the laws "in the most literal sense." Amendment 2 did that by forbidding the government of Colorado from protecting gay people against unequal treatment. As we explained, Proposition 8 does precisely the same thing. In a backlash to the California Supreme Court's ruling in In re Marriage Cases (litigation brought jointly by Lambda Legal, NCLR, and the ACLU, among others), Prop 8 created a gay-only exception to the state's constitutional promise of equality when it came to marriage and did so by adding a subsection to California's equal protection clause to curtail the right to equality that had compelled our victory in In re Marriages Cases. After the passage of Prop 8, racial and ethnic minorities, religious minorities, the disabled, seniors, felons and even left-handed people remain protected under California's equal protection clause--they cannot be denied equal access to the institution of marriage. Only gay people are denied that protection. Prop 8 thus "literally" causes the California equal protection clause to provide less protection against inequality to lesbians and gay men than it accords absolutely everyone else (and indeed no protection at all when it comes to obtaining the status and designation of marriage). In essence, Prop 8 turned California's equal protection clause into one mandating unequal protection.

Citing to the Romer decision, the Perry majority explains that "Proposition 8 denies 'equal protection of the laws in the most literal sense,' because it 'carves out' an 'exception' to California's equal protection clause by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee." The Perry decision continues, again quoting Romer: "Like Amendment 2, Proposition 8 'by state constitutional decree ... put[s] [gay people] in a solitary class with respect to' an important aspect of human relations, and accordingly 'imposes a special disability under [them] alone.'"

In Romer, Justice Kennedy explained that one of the most fundamental principles of equal protection is that "the Constitution neither knows nor tolerates classes among citizens." Amendment 2 accomplished nothing other than "singling out a certain class of citizens for disfavored status." The Ninth Circuit was bound to apply Romer's holding that this is constitutionally impermissible because it is equally true of Proposition 8. The Perry majority sums it up well: "Proposition 8 serves no purpose and has no effect, other than to lessen the status and human dignity of gay s and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples." Citing to Romer, the Ninth Circuit held that "The Constitution simply does not allow for 'laws of this sort.'"

There is much one can find in the Perry opinion. There is restraint in the judges' determination not to decide questions that did not need to be reached, such as whether the Constitution requires all states to allow same-sex couples to marry. There is humor in the decision's point that "Had Marilyn Monroe's film been called How to Register a Domestic Partnership with A Millionaire, it would not have conveyed the same meaning." There is insight in the opinion's recognition that "we do not celebrate when two people merge their bank accounts; we celebrate when a couple marries." There is wisdom in the opinion's understanding that Prop 8 cannot reasonably be understood to further any purpose other than making gay people unequal "and imposing on them a majority's private disapproval of them and their relationships." But the one thing there is not is politics.

There is not because, as the Perry opinion pointed out in beginning its analysis, Prop 8 was "not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law." That had happened before, in Romer. Following the analytic approach mandated by the Romer precedent, the Ninth Circuit had no choice, as it explained, but to "reach the same conclusion." Justice Kennedy's landmark decision in Romer required the landmark outcome in Perry. And, under the rules of precedent, both Romer and Perry are now building blocks for legal landmarks yet to come. It makes me proud to be a lawyer.