As most Kossacks know, marriage equality is before the U.S. Supreme Court today (and tomorrow); today's case is the challenge to California's anti-gay Proposition 8. Press accounts have described several different decisions that the Court could reach in the case; one common sentiment goes like this (here, in the words of Robert Barnes' WaPo primer this morning):
A panel of the U.S. Court of Appeals for the 9th Circuit ruled for the couples [challenging Prop 8] more narrowly. It said that once California had extended the right to marry — about 18,000 same-sex couples wed before Prop 8 was approved — it could not be withdrawn.I'm writing this diary because that final sentence--though you can find a version of it in just about every discussion of Prop 8 in front of the Supremes--is wrong. Flat wrong. An affirmation of the Ninth Circuit decision would absolutely not "limit the impact to California."
The U.S. Supreme Court’s affirmation of that decision would limit the impact to California.
An explanation why is after the jump.
Again, most Kossacks know the background of today's case: in May 2008, the California Supreme Court issued a decision (In re Marriage Cases) holding that refusing civil marriage to same-sex couples violated the state constitution. Anti-gay forces responded with the infamous Proposition 8, an amendment to the California Constitution that provides that "only marriage between a man and a woman is valid or recognized in California." California's voters passed Proposition 8 by a 52.2%-to-47.8% margin in the November 2008 general election.
Lawsuits quickly commenced; after the California Supreme Court refused to invalidate Prop 8, a federal lawsuit filed by two married same-sex couples resulted in the federal district court for the Northern District of California ruling, in broad terms, that Prop 8 violated the Due Process and Equal Protection clauses of the U.S. Constitution.
Defenders of Prop 8 appealed to the Ninth Circuit Court of Appeals, which affirmed the district court's ruling (in a 2-1 split decision) on narrower grounds, and very interesting ones. Writing for the majority was Ninth Circuit Judge Stephen Reinhardt, a jurist known to atheists like yours truly as the judge who wrote the opinion holding that it violates the Establishment Clause for public-school officials to lead students in recitation of the version of the Pledge of Allegiance that was marred in the 1950s with the insertion of the phrase "under God." Reinhardt's majority decision declared that there was no need to reach the broader issue of whether bans on same-sex marriage violated the U.S. Constitution, because the history of Prop 8 included an additional fact: the proposition represented not just a ban on same-sex marriage, but the removal of a same-sex marriage right that had already been granted. Reinhardt, writing for the majority, held that even if the U.S. Constitution doesn't prevent states from banning gay marriage in the first instance (a question he loudly declared he was not answering), it does ban them from taking away a right to gay marriage that already exists.
As many observers have noted, Reinhardt's strategy here appears fiendishly clever: his entire "you can't take the right away" argument is founded on Romer v. Evans, a 1996 U.S. Supreme Court decision (which, until at least 2003, was the greatest gay-rights victory in Supreme Court history) holding that states couldn't pass laws barring local governments from including GLBTs in their anti-discrimination ordinances. The notably clever part of the strategy is that Romer was a decision written by Justice Anthony Kennedy, who is widely believed to be the swing justice in the Prop 8 case, among many other cases before the Supremes.
So: Reinhardt's hope, quite clearly, is that he was providing Kennedy, and thus the Supreme Court, with a narrower platform for striking down Prop 8 that wouldn't require the Court to mandate marriage equality nationwide.
Which leads us to the widespread error committed by the WaPo's Barnes (quoted above), among so many others--such as Adam Liptak in today's NYT:
The [C]ourt could also adopt a rationale that would apply only to California along the lines of the one endorsed by the Ninth Circuit.But again, this just isn't true. If the Supreme Court adopts Reinhardt's "No Take-Backs" rule as an authoritative interpretation of the Constitution, that will have immediate implications far beyond California. Commentators who paint this outcome as something that would affect California alone just aren't thinking very hard about how the marriage-equality movement is currently going.
- - -
As is well known, there are currently nine states that have recognized full marriage equality, plus five more that allow same-sex "civil unions" and four that provide some variety of domestic-partnership rights. (California is currently in the third group, because the lower-court decisions in the Prop 8 case have been stayed pending the Supreme Court decision.) Here is a nice map created by the folks at Talking Points Memo showing the "state of the states" with regard to marriage equality.
If the Supreme Court affirms both the outcome and the rationale of the Ninth Circuit's decision, that will indeed be the death knell for Prop 8--but it will also make it impossible, for the foreseeable future (and probably forever), for the seventeen other states with some form of legal recognition of same-sex couples to take that away. Maine, Maryland and Washington State just affirmed marriage equality at the ballot box in 2012; if Reinhardt's legal analysis is adopted by the Supremes, those states' decisions will become permanent and irrevocable.
The state besides California in which a simple affirmation of the Ninth Circuit decision would have the most significant immediate effect, I think, is Iowa. Iowa is currently the only one of the nine marriage-equality states that isn't
on a coast (my apologies, Vermont!) within ninety miles of an ocean; it also holds the unhappy distinction of being the marriage-equality state in which marriage equality is least popular. A 2010 poll (cited in an NYT article here) found that only 44 percent of Iowans support allowing same-sex marriage. That number has risen since, but I don't believe Iowa has jumped past any of the eight other marriage-equality states over that time.
Marriage equality exists in Iowa thanks to Varnum v. Brien, a 2009 decision in which the Iowa Supreme Court unanimously (!) held that state law barring same-sex marriage violated the equal protection clause of the Iowa Constitution. As anyone who has watched Republican presidential caucuses knows, however, Iowa is home to a significant number of severely right-wing voters, including plenty of theocons who have pushed candidates like Mike Huckabee and Rick Santorum to caucus victories there.
That sector of the state electorate did not take kindly to the Varnum decision; since 2009, right-wing (mostly religious) organizations, backed by the odious National Organization for Marriage, have pushed hard to turn the justices who issued it out of office, with an eye toward eventually reversing Varnum and re-establishing the ban on same-sex marriage. In the 2010 election, these forces succeeded in defeating three of the seven Varnum justices. A fourth won his retention election in 2012, and the remaining three are up for theirs in 2016.
Into this milieu, now, comes the U.S. Supreme Court and the Prop 8 case. If the Supremes adopt Judge Reinhardt's "No Take-Backs" rule, NOM and its Iowa cohorts might as well pack up their anti-gay garbage and go home: Varnum could then never be overturned. (More precisely, in order to overturn it they'd need to either (1) swing the U.S. Supreme Court even further right with future appointments and then overturn the Prop 8 decision first, or (2) adopt an anti-gay amendment to the U.S. Constitution. Good luck!)
- - -
In other words, the supposedly "California only" outcome that the Supremes might reach would have a major impact on state law in the nine states that have recognized marriage equality: the decision would immediately decapitate any attempt (and, in Iowa and other states, there very much are such attempts afoot) to overturn the current equality statute or judicial decision. As a result, the notion that an affirmation of Reinhardt's decision "would limit the impact to California" is utterly wrong.
Indeed, there will be more indirect effects as well--regardless of how the Supremes' decision comes out. In one slightly perverse potential consequence, I suspect a "No Take-Backs" rule could make it slightly harder for states currently debating marriage equality statutes--such as Illinois and Minnesota--to pass them, given that legislators would learn that such a statute could effectively never be repealed.
For that matter, the outcome that the gay couples in the Prop 8 case are arguing for--full marriage equality, nationwide--could well have the perverse consequence of helping the Republican Party by taking same-sex marriage off the political table, just when it was starting to hurt the party's electoral prospects. ("Those damn activist judges! Oh, well. Now, as I was saying about that fabulous tax cut…")
Anyway. The next time someone tries to tell you that affirming the Ninth Circuit's decision would only make a difference in California, please point out that that's just not true.