Also, a quick moment to revisit 'Was Prop 8 Straight'?...

Ernest A. Canning Byon 2/9/2012, 9:35am PT

Guest blogged by Ernest A. Canning

On Tuesday, a divided three judge panel of the U.S. 9th Circuit Court of Appeal ruled that California's Proposition 8 ban on same-sex marriage --- a right that had otherwise previously existed for same sex couples in the state --- violates the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.

The majority opinion in Perry vs. Brown [PDF] this week decided an issue that was so narrow and so tightly crafted to meet the criteria of a 1996 U.S. Supreme Court decision, Romer v. Evans, that it minimized the chances that the U.S. Supreme Court will decide to hear the case, let alone reverse the decision.

As we examine the future course of the Prop 8 litigation, it's appropriate, if only briefly --- while this particular issue remains far away in the rear view mirror --- to offer a reminder of the still unresolved question as to whether CA voters actually approved the controversial measure at the ballot box in the first place...

Broader constitutional issues avoided

The 77-page majority opinion, which was written by veteran U.S. Circuit Judge Stephen Reinhardt (nominated by President Carter and confirmed in 1980) and joined by Judge Michael D. Hawkins (a former U.S. Marine Corps judge and former U.S. Attorney for AZ, who was nominated by President Clinton and confirmed in 1994), expressly declined to address the broader Constitutional issues of marriage equality, stating:

Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question...We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment's constitutionality on narrow grounds.

The narrowly crafted majority decision contains two aspects, which, when combined, suggest that Perry will have limited impact outside the boundaries of the Golden State.

First, per an earlier CA Supreme Court ruling, at the time voters went to the polls on Nov. 4, 2008, same-sex couples had a fundamental right to marry under the CA Constitution. Under the 2003 CA Domestic Partners Act both same-sex and opposite-sex unmarried couples who register as domestic partners have "the same rights, protections and benefits" and are "subject to the same responsibilities, obligations, and duties under law...as are granted to and imposed upon spouses."

Both before and after the adoption of Proposition 8, same-sex couples retained all rights incidental to marriage. This factor was critical in the majority's equal protection analysis. Proposition 8, Judge Reinhardt opined, "serves no purpose, and has no effect, other than to lessen the status of human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

Narrow grounds may keep U.S. Supreme Court out

In "Proposition 8: What Happens Next?" this week, TPM's Jillian Rayfield reports on the view that the narrow scope of the Perry decision may have lessened the prospect that the U.S. Supreme Court would grant a hearing for the decision. She reports that view is shared by several law California law professors and by attorney David Boies, who, together with former Bush Administration Solicitor General Theodore Olson, argued Perry on behalf of the plaintiffs.

"The Court might not want to try to take this issue on those facts, and might wait for a case on a more general issue that the [9th Circuit] court did not have to face," Boies said during a conference call following announcement of the ruling.

However, as Rayfield went on to note, both Boies and Olson caution that because language utilized by Judge Reinhardt is language that would "support a national right to marriage equality," the Supreme Court might be tempted to hear the matter nonetheless.

If they did, it would entail going beyond the basis for the 9th Circuit decision, opening the way to criticism for an exercise in judicial activism --- the very type of judicial activism that provided a source of criticism in the now infamous Citizens United decision.

Narrow substantive ruling lessens likelihood of SCOTUS reversal

Both the majority, by evading the more pervasive issue, and the dissenting opinion, written by Judge N. Randy Smith, the former chair of the Idaho Republican party who was nominated by George W. Bush and confirmed in 2007, addressed the question of whether Proposition 8 violated the Equal Protection Clause of the U.S. Constitution's 14th Amendment by applying the lowest level of judicial scrutiny. Under this "minimal" scrutiny standard, a statute or ballot initiative should survive an Equal Protection challenge if there is a rational relationship to a legitimate governmental interest upon which it is based.

Judge Smith cited studies noting that "married biological parents" provide "the optimal parenting structure." He argued that this could "conceivably be a legitimate governmental interest." Smith suggested [emphasis added] that "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."

Judge Reinhardt made short work of those contentions, stating there was no need to examine "the sociological premise" embodied by the optimal parenting argument because "Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California...Both before and after Proposition 8, committed opposite-sex couples ('spouses') and same-sex ('domestic partners') had identical rights with regard to forming families and raising children." Reinhardt added that "Proposition 8 did not alter the California adoption or presumed-parentage laws, which continue to apply equally to same-sex couples."

What Judge Smith, who conceded that it is not enough to simply posit "a conceivable governmental interest," has proffered is not a rational relationship to "a legitimate governmental interest" but, at best, an unfounded and speculative belief regarding a goal that has no rational connection to that which Proposition 8 accomplishes.

Supreme Court's 1996 Romer decision cited as binding precedent

Citing Romer as a controlling precedent, Judge Reinhardt wrote that the "People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."

To understand Perry, one must first examine Romer.

In 1992 Colorado voters amended the Centennial State's constitution by way of a statewide referendum. The measure, known as Amendment 2, precluded all legislative, executive, or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

By a 6-3 margin (Chief Justice Rehnquist & Justices Scalia and Thomas dissenting), the U.S. Supreme Court ruled in the Romer case that Colorado's Amendment 2 violated the Equal Protection Clause of the 14th Amendment. The majority opinion was written by Justice Anthony Kennedy, who opined:

It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. 'Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.'

In his dissent in the Prop 8 case, Judge Smith sought to distinguish Romer because of the breadth of Amendment 2's across the board, discriminatory reach. Nonetheless, it seems doubtful that Justice Kennedy, who authored the Supreme Court's 2003 Lawrence v. Texas decision, which held that the Lone Star State's sodomy law violated the Due Process Clause of the 14th Amendment, will be persuaded by the differences highlighted by Smith.

To accept the argument, Kennedy would need to be convinced that the "indiscriminate imposition of inequalities" by eliminating a same-sex couple's previously state-recognized right to marry was more constitutionally permissible than the astoundingly broad range of discrimination embodied in Colorado's Amendment 2. Indeed, one would anticipate that Justice Kennedy would find Judge Reinhardt's majority reasoning more persuasive, to wit:

Proposition 8 is no less problematic than Amendment 2 merely because its effect is narrower; to the contrary, the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect….[It] raises an even stronger 'inference that the disadvantage imposed is born of animosity towards the class of persons affected.'

It is for these reasons that it is unlikely that the U.S. Supreme Court would reverse the 9th Circuit ruling in Perry.

'Was Prop 8 Straight'?

Finally, though this particular horse has likely long ago left the proverbial barn, it's worth a reminder at this point of one unfinished --- or rather, one completely unexamined question concerning Proposition 8's originally reported passage in California.

In this week's decision, all parties, the U.S. District Court and the 9th Circuit Court of Appeal, all made a basic assumption --- one embodied at the outset of Judge Reinhardt's opinion wherein he recited that on Nov. 4, 2008, "the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry."

As The BRAD BLOG reported back in January 2010, however, a 49-page study based on an 'Election Verification Exit Poll' raises still unresolved, serious doubts as to the accuracy of that basic assumption.

In that January 2010 article, Brad Friedman reported:

The poll was conducted on Election Day by Election Defense Alliance Protect California Ballots , and ElectionIntegrity.org and was designed and researched with the help of at least one well known exit pollster, Ken Warren of St. Louis University's The Warren Poll, for the express purpose of measuring the accuracy of the reported vote count. It functioned beautifully in general, by confirming the results of most of the issues and races on the ballot. On Proposition 4, for example, which concerned a similar hot-button issue --- parental notification for abortion --- exit poll results and official election results matched within 2%, well within the expected margin of error. However, for Proposition 8 only, the official results varied from the Election Verification Exit Poll by an average of 7.75% in the 19 precincts polled. In some cases, the discrepancy was as high as 17.7%. That is, of course, far outside of the margin of expected error and certainly worthy of further investigation by officials.

Friedman went on to discuss the basic issue of our continued reliance upon "easily-hacked, oft-failed and non-transparent optical-scan paper ballot systems and computerized tabulators, rather than human beings who can oversee results as they are tabulated by hand."

He concluded:

On one hand this new information is disturbing if only as a significant indication that hundreds of thousands of Californians may have had their civil rights taken away as a result of a possibly fraudulent and/or erroneously tabulated election. On another level, the potentially even more disturbing issue is that nearly every election in every jurisdiction in this country now relies almost exclusively on non-transparent election technology that makes it virtually impossible for citizens to know with any certainty that their elections have been tabulated accurately.

Thus, it would perhaps have been useful if, before the CA Supreme Court and the U.S. 9th Circuit Court of Appeal recognized standing on the part of the proponents of Proposition 8 to represent the People of the State of California, they might have determined whether that measure actually received more "yes" votes than "no" votes. Sadly, however, the question was never made a part of the case. The failure of the government and corporate media to first address the fundamental questions about the reported passage of the measure (and others like it) have become all too often a matter of routine, with respect to serious election integrity issues that have arisen in literally thousands of articles published at The BRAD BLOG over the past eight years.

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968). Follow him on Twitter: @Cann4ing.

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