Leave a Comment Johan
Will the Supreme Court apply Romer v. Evans or Lawrence v. Texas to strike down Prop 8?
February 13, 2012
By Adam Bink
It’s become accepted conventional wisdom that the opinions written by Judges Walker and Reinhardt have been aimed at winning over Justice Anthony Kennedy’s “swing vote” should the Perry v. Brown case regarding the constitutionality of Prop 8 make it to the Supreme Court. Attorney Adam Bonin, writing at DailyKos, says Judge Reinhardt’s opinion as written “in Justice Kennedy’s sweet spot.” Courage Campaign’s Rick Jacobs remarked to me the other day how the little hints and winks in such opinions are like Kremlinology, part of a subtle strategy.
In today’s Los Angeles Times, University of Minnesota law professor Dale Carpenter fleshes out exactly why Prop 8 would fall at the Supreme Court — and it’s not necessarily, he argues, because of Romer v. Evans (a 1996 decision striking down Amendment 2 in Colorado), but because of Lawrence v. Texas (a 2003 decision striking down anti-gay sodomy bans across the country). The majority opinions in both cases were written by Justice Kennedy. Carpenter:
The 9th Circuit relied heavily on Justice Anthony Kennedy‘s opinion for the Supreme Court in 1996 in Romer vs. Evans, which invalidated a state constitutional amendment forbidding any law protecting homosexuals from discrimination in any area of life. In a 6-3 decision, the court held Colorado’s Amendment 2 unconstitutional, in part, because it was “at once too narrow and too broad,” identifying “persons by a single trait and then denying them protection across the board.”
But is the Supreme Court likely to apply the reasoning of Romer to the Proposition 8 case? As the 9th Circuit panel conceded, the initiative did not deny homosexuals legal protection across the board. Unlike the blunderbuss Amendment 2, Proposition 8 used what the opinion aptly called “surgical precision” to remove the title of marriage from otherwise fully protected relationships. In other words, the court seemed to argue, Proposition 8 violated the principle of Romer because it was at once too narrow and too narrow. That is a curious, and I think strained, application of Romer vs. Evans.
To the extent the 9th Circuit relied on the distinct harm caused by withdrawing six months’ worth of court-ordered recognition, the opinion is even more shaky. California voters closed the window as soon as they could; surely their rebuke of state courts can’t by itself constitutionally immunize judicial decisions.
Nevertheless, the root question will be why the window was closed at all. Romer makes clear that it is not constitutionally acceptable to disadvantage a class of persons simply to express animosity toward them. But Proposition 8′s proponents certainly did not agree that the initiative was motivated by dislike of gay people. And though anti-gay arguments were made in high-profile campaign ads, it would be difficult to know what really motivated 7 million people to vote as they did.
If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court’s decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.
The sorry history of this country’s legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.
Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described “country lawyer” who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.
“I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason,” he recalled thinking, obviously still baffled. “And nobody could explain to me why.”
In Lawrence, the court ruled that the state could not impose the majority’s moral code on homosexuals. It could not “demean their existence or control their destiny” by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.
But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.
So what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence. Despite what some critics last week charged, to challenge the sufficiency of the reasons offered for Proposition 8 is not to indict traditional marriage itself as bigoted and irrational. There are many rational, indeed compelling, reasons to support marriage between one man and one woman. Among others, getting heterosexuals to take responsibility for the children they conceive is a powerful reason to encourage them to marry.
But encouraging heterosexuals to take seriously their familial obligations is no reason by itself to deny same-sex couples the full social and legal incentive to settle down. And to confer parental rights, marital rights and marital obligations on same-sex couples without giving them “marriage,” Proposition 8′s proponents must more convincingly answer one question.
Why?
It is not certain whether the Supreme Court will even take the case, but if it does, the question arises on which holding the Court will rely on — if it strikes down Prop 8 at all.
Filed under: Prop 8 trial
Having technical problems? E-mail prop8trial AT couragecampaign DOT org for assistance!
18 Comments Leave a Comment
1.
Ann S. | February 13, 2012 at 10:44 am
§
2.
chris hogan | February 13, 2012 at 10:57 am
It seems that once you take down all the legalistic mumbo jumbo from the prop 8 proponents arguments, what remains is something like this:
"A lot of people don't like and respect gay relationships, so if we allow marriage for THEM, then straight people won't respect their own marriages as much."
Unfortunately, the government should not be in the business of making people respect their relationships. There are self-help courses and therapists for that.
3.
Kevin Sours | February 13, 2012 at 10:57 am
I'm of the opinion that the court is exceedingly unlikely to render an opinion against Prop 8. If they aren't inclined to support it they'll deny cert. So we probably won't know what rationale they have for thinking it unconstitutional.
4.
Leo | February 13, 2012 at 11:15 am
That's somewhat of a strawman. I think their main argument (which I am in no way endorsing) is better summarized as "People think marriage is for making babies. If we allow gay couples to marry, people will no longer think that, and will not think about marrying before making a baby."
5.
Bob | February 13, 2012 at 11:27 am
great article,,,, throwing more weight behind the Lawerence vs Texas,,,, love this quote " In Lawrence, the court ruled that the state could not impose the majority's moral code on homosexuals. It could not "demean their existance or control their destiny" by driving them away from relationships…
wow that's powerfully affirming, in stating we exist , and we have a destiny !!!!!!! love that,,,,,
6.
Bob | February 13, 2012 at 11:47 am
remember only opposite sexed couples can accidentlally concieve,,, i.e. lust and passion in the heat of the moment without forthought, or even actually knowing the other,, can result in pregnancy,,, and bring a child into the world,,,, society brings much pressure in this situaiton to result in marriage,,,,
Literalists believe the coupling is to be done before any diddling,,, so the child is born into a marriage,,,, they should all be working on getting that to happen in the first place,,, and leave us alone,,, cause quiet simply we are no part of that equation…….
7.
Joe | February 13, 2012 at 11:52 am
Nearly four years ago, 18,000 same sex couples married in California and have been legally married ever since. If there was such great harm to marriage, wouldn't there be any evidence of it happening by now?
8.
Joe | February 13, 2012 at 11:54 am
Strawman is right. There is absolutely no proof of this happening.
9.
Bob | February 13, 2012 at 11:56 am
Literalists (reliegious right) believe the only form of planned parenthood, is biblically sanctioned marriage,,,,, that is why all the attacks on anything to do with planned parenthood,,, cause it should not be planned by the couple,, but by God, through the union of Holy Matrimony,,,, that is why they are so focussed on contolling womens bodies,,,,, and taking away womens personal freedoms……
they spend all their time energy and resources focussed on judgement and blame,, rather than encouraging more thoughtful procreation to begin with,,, and honoring the gift,,, which is overlooked as they project their anger on contolling people to conform to a belief they have…
10.
_BK_ | February 13, 2012 at 12:03 pm
Look what same sex marriage did to Kim Kardashian! If we let more same sex marriages happen, your friends and relatives will be next!
/sarcasm
On another note, I'm watching WA's governor sign the bill. (:
11.
DaveP | February 13, 2012 at 12:05 pm
…. not to mention all of the thousands and thousands of same sex couples who have been legally married for over ten years in other countries…..
12.
Bryce from DC and KS | February 13, 2012 at 12:15 pm
Bummer. I had hoped it would be tomorrow.
13.
Bryce from DC and KS | February 13, 2012 at 12:20 pm
But still good news, nevertheless.
14.
fiona64 | February 13, 2012 at 1:12 pm
This is also known as the "We got married because Bubba's condom done busted in the back of the Buick" version of "traditional family values."
15.
RWG | February 13, 2012 at 7:45 pm
"A lot of people don't like and respect gay relationships, so if we allow marriage for THEM, then straight people won't respect their own marriages as much."
That may be in the minds of a few people, but I think far more widespread is an unwillingness to accept that the "dirty queers" could possibly, in any way, ever be equal to "normal" people. They are not worried about their own marriages, but they view the institution as exclusively their own, and are decidedly unwilling to share or admit we are humans worthy of respect.
16.
Dr Brent Zenobia | February 14, 2012 at 6:38 am
The "why" is apparent. Same-sex marriage represents social acceptance. The right wing can't even countenance tolerance of LGBTs, let alone acceptance. The right has a different vision of the future, one that doesn't have LGBTs in it any more. So they will continue to fight us for every inch of progress and will never give in.
Winning same-sex marriage rights will be a key victory for us because it will help remove the government from the business of being the enforcer for the right wing's morality. When it comes to the LGBT community, the government has had its thumb on the scales of justice for far too long.
That is why they oppose us. Everything else is pretext, including religious objections. The right has an irreconcilably different vision of the future, and we're not in it.
17.
proud lesbo | February 22, 2012 at 7:26 pm
they say god should bless us with children when he pleases but way to many hetros are having babies and cant even support them at least us "GAY" folks know when we can physical and finacially take care of our children at least this way we plan our children and our country is way to over populated nothing against hetros but we should all have to plan better to have children anywayse and since when is it anyones problem how other people think about there relationships sorry but i really dont care if hetros want to get married anymore i just want the same rights as them and since when did god descriminate well ill tell you he didnt god loves us all as a woman since i can work fight in a war and vot ei should be able to marry and have babies with whoeever i damn well please and it shouldnt be any one elses concerne i should be able to show my love she same way a straight couple can this is all bullshit and they should stop fighting us and wasting goverment money and just give us our damn rights cause honestly my relationship isnt hurting anyone elses life my wife is a great lawyer and im a great wife and mother what is so differant from my relationship then from theres besides the sex???
18.
Bob | February 22, 2012 at 7:37 pm
well said just give us our rights!!!!!!!
Leave a Comment
XHTML: You can use these tags: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>
TrackBack URL | RSS feed for comments on this post.