LGBT in OT 2012: Will California’s Prop 8 make it to the Supreme Court?

November 21, 2012

Supreme Court LGBT(Editor’s note: With the reelection of President Barack Obama and the legalization of same-sex marriage in three states during the same night, 2012 is shaping up to be a significant year for LGBT rights.  With many cases involving such rights seeking review before the Supreme Court, it may also be a significant term at the Court.  Throughout the month of November, Westlaw Insider will be looking at these cases, and how a Supreme Court ruling could impact the nation.)

Week 1: The impact of a Supreme Court decision in Windsor v. U.S (part 1)

Week 2: The impact of a Supreme Court decision in Windsor v. U.S (part 2)

So far this month, we’ve discussed one of the cases seeking review before the Supreme Court that directly challenge the federal Defense of Marriage Act (DOMA).

The second in this monthly series specifically dealt with the potential consequences for individual state bans on same-sex marriage in the wake of a Supreme Court decision striking down DOMA.

But what if the Court were to consider a case that directly dealt with the constitutionality of a state ban on same-sex marriage?

Such a case exists: Hollingsworth v. Perry (formerly Perry v. Brown and Perry v. Schwarzenegger before that), which is currently seeking review from the Court.

Perry is the “Prop 8 case” – the legal challenge to California’s Proposition 8, which was a 2008 ballot initiative that amended the California State Constitution by adding a section that simply read that “only marriage between a man and a woman is valid or recognized in California.”

The Ninth Circuit invalidated the constitutional amendment, finding that there was no legitimate governmental interest in “withdrawing access to marriage from same-sex couples.”

“Legitimate governmental interest” is the requirement of the “rational basis” standard – the level of constitutional review most deferential to the government.

In other words, the Ninth Circuit found that Prop 8 “enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.”

As the Supreme Court’s 1996 decision Romer v. Evans established, a “basic disapproval of a class of people” cannot constitute a legitimate governmental interest.

If you’ve read the earlier posts in this series, you’ll note that Windsor v. U.S. differs from Perry in that Windsor used “intermediate scrutiny” instead of rational basis, and this distinction is particularly significant when it comes to a Supreme Court decision.

Let’s put it this way: if the Supreme Court were to hear only one same-sex marriage case this term, proponents of such rights should hope that it’s a DOMA challenge like Windsor instead of Perry.

This is for the simple reason that the Supreme Court would have to go out of its way to expand the scope of the issue brought before it if the ruling were to in any way effect a nationwide change on the issue of same-sex marriage.

Given the philosophy of the Chief Justice, which emphasizes judicial restraint, this possibility seems remote.

Albeit, the question presented to the Court in the Prop 8 supporters’ certiorari petition is broad:

“Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman.”

But given that the appeals court only used a rational basis standard of review in striking down Prop 8, and it only was able to do so because Prop 8 explicitly revoked a preexisting right, Prop 8’s supporters seem to be inviting the Court to answer the question in the negative.

After all, answering the question in the affirmative would require the Court to look beyond the existing facts and law of the case and actively create its own justification as to why the Fourteenth Amendment prohibits individual states from restricting marriage to opposite sex couples; and that’s just not something our current Supreme Court is going to do.

Of course, the Court could make up its own question (as it often does), and it might well do so if it grants review to Perry, since the aforementioned question presented by Prop 8 supporters isn’t an accurate reflection of the issue when the case was in the appeals court.

My thought is that the Court will likely just reject the petition for review since, if the Court were to truly only consider the case as it was presented and ruled upon in the Ninth Circuit, it would be a very narrow ruling that would only outlaw the banning of same-sex marriage in states where it was already legal.

When there are so many other cases seeking review that could act as a vehicle for a much broader change, it doesn’t seem particularly likely that the Court would go with Perry, where the immediate impact of such a SCOTUS ruling would only be felt by California.

Such a denial of certiorari would lift the stay on the Ninth Circuit’s ruling, thereby invalidating Prop 8 and restoring the right of same-sex couples to marry in California.

Since SCOTUS would be unlikely to reverse the Ninth Circuit even if it did agree to hear Perry, they are all the more likely to cut out the middleman and just deny certiorari from the start.