By Jacob Combs
Hi P8TTers–I hope your Thanksgivings were restful and filled with family. Earlier this week, there was an update in a lawsuit filed by the Servicemembers Legal Defense Network (SLDN) in October called McLaughlin v. Panetta, and I thought I’d write a little about the development and why it’s so important.
SLDN, you’ll remember, was one of the organizations that pushed hardest for repeal of Don’t Ask, Don’t Tell. Now that DADT is dead and gays and lesbians can serve openly in the U.S. Armed Forces, SLDN filed a follow-up lawsuit in a federal court in Boston on behalf of eight plaintiffs who are legally married, but prohibited by DOMA from obtaining many of the benefits that heterosexual military couples enjoy, including on-base housing, health care, survivor benefits, and burial rights at national cemeteries.
On Monday, SLDN filed a brief for summary judgment in the case, arguing that DOMA’s prohibition on spousal rights for same-sex military couples violates both the Due Process clause of the Fifth Amendment and the limitations of congressional authority laid out in the Tenth Amendment. In filing for summary judgment (which is when a court decides a case without hearing a full trial), SLDN argues that the U.S. government has made no objection to the facts laid out in the case, and thus it can be decided without further hearings. None of the government defendants–Attorney General Eric Holder, Defense Secretary Leon Panetta and Veterans Affairs Secretary Eric Shinseki–have filed any defense in the case. BLAG, the Bipartisan Legal Advisory Group (which voted on party lines to defend DOMA in court after the Obama Administration declared the law unconstitutional and declined to continue defending it in February), filed a brief earlier this November informing the court that it would seek to intervene in the case if the official defendants do not defend DOMA.
In a delicious turn of events, many of the arguments SLDN uses in its brief are borrowed in part from politicians who supported DADT and argued to continue the discriminatory policy when it was repealed late last year. As SLDN’s brief puts it:
Any claim that DOMA, as applied to military spousal benefits, survives rational basis review is strained because paying unequal benefits to service members runs directly counter to the military values of uniformity, fairness and unit cohesion. While there was once a debate as to whether gay and lesbian service members should be allowed to serve openly in the armed forces — just as there were similar debates regarding integrating the military by race and then by gender — there never has been any debate as to whether similarly situated service members who do the same work deserve the same benefits.
Although it has taken us almost a year to get here, this lawsuit shows just how important repealing DADT was. In fact, many in our community (myself included) saw DADT repeal as the first domino to fall in achieving full federal equality. It is clearly unconstitutional and discriminatory for our nation’s military, an institution based on the values of fairness and equality, to treat lawfully married same-sex couples differently from their opposite-sex counterparts.
To put it simply, DOMA is hanging by a thread: it cannot and has not withstood constitutional scrutiny in a court of law. SLDN’s lawsuit may not be the one that ends up striking down DOMA for good–last year’s companion cases Gill v. OPM and Massachusetts v. HHS, in which Judge Joseph Tauro, a Nixon appointee, struck down the law as unconstitutional, are already in the U.S. Court of Appeals for the First Circuit, and will likely make it to the Supreme Court before SLDN’s suit. (Incidentally, the SLDN lawsuit was originally assigned to Judge Tauro, but later reassigned to a different judge.)
As I sat on the porch yesterday waiting while the turkey cooked and writing this post, I was struck by an opinion piece brought to us by Sagesse in Quick Hits. Written by Jim Toevs, the piece points out that the repeal of DADT is something for every member of the LGBT community to be thankful for this year. I couldn’t agree more. SLDN’s lawsuit shows just how important it is to strive for equality in all aspects–whether it be in terms of marriage, military service or even employment. Our victories are not isolated, but rather build upon each other, and each step we take moves us closer to a country where we can be thankful that we enjoy the rights all citizens deserve.
November 25, 2011
This post will serve as a permanent piece on EqualityOnTrial.com about the history of the Prop 8 trial. If you see something that’s missing or should be updated, e-mail equalityontrial at couragecampaign dot org.
UPDATED as of January 15, 2014
By Jacob Combs and Adam Bink
The end result
On June 26, 2013, the U.S. Supreme Court ruled that the proponents of Proposition 8 had no standing to appeal the initial district court ruling invalidating the law and requiring California to restore equal marriage rights to its same-sex couples. Writing for the majority, Chief Justice John Roberts explained the court’s decision as one of respecting previous precedent:
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
With that ruling, the Supreme Court made Judge Vaughn Walker’s broad ruling striking down Prop 8 as unconstitutional the final judicial say on the matter. Just two days later, on June 28, in an unexpected move, the Ninth Circuit Court of Appeals lifted the stay that had been in place on Judge Walker’s ruling, allowing same-sex couples to once again wed in the Golden State. The two plaintiff couples in the case, Kristin Perry and Sandra Stier and Paul Katami and Jeff Zarrillo, became the first to wed in San Francisco and Los Angeles, respectively.
The Prop 8 case had a long, complex procedural history, and EqualityOnTrial, which was founded as Prop 8 Trial Tracker, covered the case from the very beginning in a San Francisco courtroom, to the Ninth Circuit and then the U.S. Supreme Court in Washington, D.C. We’ve put together the following overview for those interested in an in-depth look at the history of the case.
The case itself (regarding the constitutionality of Proposition 8 on the merits)
The skinny: In 2009, the American Foundation for Equal Rights (AFER) filed suit in the U.S. District Court for the Northern District of California on behalf of two couples, Kristin Perry and Sandra Steir, of Alameda County, and Paul Katami and Jeffery Zarrillo, of Los Angeles. Both couples had been denied licenses by their respective county authorities on the basis of their sexual orientation, as Proposition 8, a constitutional amendment passed in 2008, had amended the California Constitution to recognize marriages only between a man and a woman. Representing the plaintiffs were Ted Olson and David Boies, two well-known attorneys who had been on opposite sides of the landmark Bush v. Gore case that decided the 2000 presidential election.
The non-jury trial took place in January, and included an unprecedented courtroom look into the history of marriage in the United States, the discrimination LGBT people have faced throughout history, and the economics involved in prohibiting or allowing marriage equality in California. On August 4, 2010, Judge Walker ruled in favor of the plaintiffs, striking down Prop 8 as unconstitutional under both the Due Process and Equal Protection clauses of the U.S. Constitution’s 14th amendment. In his opinion, Judge Walker presented 80 findings of fact regarding same-sex marriage, which included discussions about the immutability of sexual orientation, the ability of same-sex couples to be good parents, and the inequality of providing LGBT couples with civil unions as opposed to full marriages. These findings of fact are highly significant, because while appellate courts can overturn a lower court’s decision based on its findings of law, they usually defer to those courts’ findings of fact.
Almost immediately, the proponents of Prop 8 appealed Judge Walker’s decision to the 9th Circuit Court of Appeals. The 9th Circuit stayed the lower court’s injunction against Prop 8 pending appeal, and a 3-judge panel heard oral arguments in the appeal in December of 2010, in which both sides argued their case on the merits. One significant question that the panel asked regarded the standing, or authority, of the proponents of Prop 8 under federal law to appeal Judge Walker’s decision. (For more on the standing issue, see below.) Instead of issuing a ruling, in January the 9th Circuit panel referred (the official term is ‘certified‘) a question to the California Supreme Court as to the proponents’ standing under state law, and the appeal was placed on hold pending the state court’s answer. In March 2011, the California Supreme Court agreed to hear the question sent over by the 9th Circuit, and a hearing date was eventually set for September 6. The plaintiffs requested a speedier timeline, but the California Supreme Court refused to expedite its proceedings on the issue of standing, and eventually the court made its decision, which it issued on November 17, 2011.
On February 7, 2012, the 9th Circuit released its opinion in Perry v. Brown that Proposition 8, the 2008 voter-enacted ban on marriage equality in California, is unconstitutional. In addition, the appeals panel ruled that the proponents of Prop 8 did have standing to pursue their appeal of Judge Walker’s decision striking down the marriage ban, and upheld District Court Judge Ware’s decision denying a stay to throw out Walker’s ruling because he is gay. The ruling on constitutionality was divided on an 2-1 vote, with Judges Stephen Reinhardt and Michael Hawkins voting to strike Prop 8 down, and Judge N. Randy Smith voting to uphold the ban. In its ruling, the 9th Circuit avoided following Judge Walker’s broad recognition of a right to marriage equality under the U.S. Constitution, arguing instead that there was no need to even address whether the Constitution contained such an inherent right. Instead, they focused on the specific situation in California, in which gays and lesbians had been given full marriage rights which were then taken away. The appeals panel found that it was unconstitutional to take away rights from a group that have already been granted, when the reason for removing such rights is moral animus. Furthermore, the 9th Circuit panel’s decision stressed how important the word and designation of “marriage” is, and maintained that civil unions and domestic partnerships which grant such rights but withhold that designation are not equal to full marriage rights.
On June 5, 2012, the Ninth Circuit denied a request by the proponents of Prop 8 to have Judge Walker’s opinion reconsidered by a larger en banc panel of the appellate court. The en banc procedure is a little bit complicated, but in essence it boils down to this: in between the district courts, which hear initial arguments in individual cases and are the only courts where witnesses are brought in to testify, and the U.S. Supreme Court, which has the final say on any case it takes up and can choose which cases they want to hear and which not to hear, lie the 13 Courts of Appeal. California falls under the Ninth Circuit, which is the largest in the U.S. Any case that has been decided by a trial court has an automatic right to appeal, although these appeals often take a lot of time.
Smaller appellate courts often have a handful of judges on staff, but the Ninth Circuit has 29 active judgeships. Because of the enormous number of cases that come to the appellate courts throughout the year, appeals are assigned to 3-judge panels, chosen at random, who consider the ruling of the lower district court. After a 3-judge panel has ruled, the lower side can either appeal to the U.S. Supreme Court, or they can choose to seek an en banc rehearing, in which all of the active judges in a specific circuit rehear the appeal. The earlier 3-judge panel ruling is vacated, and the case is considered anew. These en banc appeals are not guaranteed, and are rarely granted, due to the inherent complexity of having a large number of judges hear a case together in one location.
Because of its size, the Ninth Circuit has its own en banc procedures: since it is impractical to have 29 judges hear one case, en banc panels in the Ninth Circuit have 11 judges on them, with 10 chosen at random and the Chief Judge, Alex Kozinski, joining them. Intriguingly, this means that en banc decisions in the Ninth Circuit do not necessarily reflect the majority opinion of the entire court. For this reason, en banc rehearings in the Ninth Circuit are unlikely to be granted.
In the June 5 ruling, the original three-judge panel that heard the appeal of Judge Walker’s decision voted 2-1, along the same lines as the decision, to deny en banc rehearing, with Judges Reinhardt and Hawkins voted to deny it and Judge Smith voting in favor of it. Judge O’Scannlain (who has written in favor of en banc rehearing on LGBT cases before and has excoriated the Ninth Circuit for its rulings favorable to gays and lesbians), wrote a dissent, joined by Judges Bybee and Bea, explaining why he supported the rehearing. (That dissent can be found here.)
Because the Ninth Circuit has chosen not to rehear Judge Walker’s ruling en banc, the 3-judge panels decision striking down Proposition 8 is now the appellate court’s last say on the matter. On July 31, the proponents of Prop 8 filed a petition for a writ of certiorari with the U.S. Supreme Court, asking them to consider the following question: “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.” In their filing, the proponents laid out five reasons why the high court should take up the case.
On August 24, 2012, the plaintiffs in the Prop 8 case filed their own brief opposing the proponents’ brief and explicitly asked the Supreme Court not to take on the case, writing that “this Court’s traditional standards for the exercise of certiorari jurisdiction lead inexorably to the conclusion that this Court’s review is not warranted.”
On August 27, 2012, Judge Ware (who took over the Prop 8 case at the district level after Judge Walker’s retirement) ordered the case closed at the district level, which makes Judge Walker’s injunction is the district court’s final say on the matter. Nevertheless, the Ninth Circuit has issued a stay on its decision upholding Walker’s ruling until Supreme Court review is complete. That means marriages cannot begin until the Supreme Court has issued a final ruling in the appeal of the Prop 8 case.
The Supreme Court announced in an order on December 7, 2012 that it will take up the Prop 8 and the Defense of Marriage Act cases for further review. In January 2013, the Court set a hearing date for the Prop 8 case on March 26 and a hearing for the DOMA case on March 27. After those hearings, the justices will deliberate and then hand down a decision by the end of the Court’s term, which lasts until June. In the meantime, the Ninth Circuit’s ruling striking down Prop 8 as unconstitutional continues to be stayed, and couples cannot wed in California.
On February 28, 2013, Solicitor General Donald Verrilli, Jr. filed a brief with the Supreme Court on behalf of the Obama administration arguing that Proposition 8 is unconstitutional. In his brief, Verrilli argued that laws pertaining to gays and lesbians should be subject to heightened judicial scrutiny, making the same argument that the federal government presented to the Supreme Court in the Windsor DOMA challenge.
The administration’s argument focused specifically on California’s legal treatment of same-sex couples, noting that “California law provides to same-sex couples registered as domestic partners all the legal incidents of marriage, but it nonetheless denies them the designation of marriage allowed to their opposite-sex counterparts.” With these specifics in mind, the Solicitor General wrote, “the exclusion of gay and lesbian couples from marriage does not substantially further any important governmental interest. Proposition 8 thus violates equal protection.” In his brief, Solicitor General Verrilli pointed out that seven other states provide similar rights as California to same-sex couples through either domestic partnership or civil unions laws. Although the brief stopped short from explicitly arguing the Court should invalidate those laws and allow same-sex couples to marry in those states, its logic could reasonably be extended to apply to those states as well, should the Court choose to do so.
On March 26, 2013, the U.S. Supreme Court heard oral arguments in the Prop 8 case, which at that point was known as Hollingsworth v. Perry. During the hearing, The Justices’ questions focused primarily on the issue of standing and whether the official ballot proponents of Prop 8 (who stepped in to defend the constitutional amendment in court after California’s governor and attorney general declined to do so) were the proper parties to appeal the district court decision invalidating Prop 8. On the question of the constitutional merits of Prop 8, the Court split along partisan lines, with the four liberals leaning towards striking down the law, the four conservatives leaning towards upholding it, and swing Justice Anthony Kennedy somewhere in the middle.
On the merits of Prop 8, Charles Cooper–representing the proponents of Prop 8–argued that the Supreme Court should allow the “earnest debate” happening across the country on the issue of marriage equality to play out instead of stepping in and ‘constitutionalizing’ the issue with a court ruling. He also made the ‘responsible procreation’ argument that he and the proponents have made before at the lower courts, contending that same-sex couples are not similarly situated with respect to opposite-sex couples since only the sexual union of opposite-sex couples can accidentally lead to conception.
Representing the plaintiffs challenging Prop 8, Ted Olson told the Court that marriage is a fundamental right separate from procreation, arguing that Prop 8 holds gay and lesbian Californians back from accessing this right.
On June 26, 2013, the Supreme Court held that the proponents of Prop 8, ProtectMarriage, did not have standing in the first place to appeal the case to the Ninth Circuit Court of Appeals. The Court sent the case back to the Ninth Circuit with instructions to dismiss the appeal, which it did on June 28. Judge Vaughn Walker’s district court order then became the last judicial word on the matter, returning marriage equality to California.
Previous issues in the Prop 8 case that have been considered by the lower courts
Standing (whether or not the supporters of Proposition 8 have the legal standing to appeal)
The skinny: The issue of standing in Perry is hands-down the most legally convoluted aspect of the case. The original lawsuit filed by AFER on behalf of the two couples named as its defendants then-California Governor Arnold Schwarzenegger and Attorney General Jerry Brown, along with several other state officials. (The case is now called Perry v. Brown because Gov. Brown succeeded Gov. Schwarzenegger.) Schwarzenegger and Brown declined to defend the lawsuit in court, so the proponents of Proposition 8 (ProtectMarriage.com) filed successfully to join the suit as what are called intervenors — people who are not official parties to the case but feel the outcome of the case would affect them.
During the course of the trial, Judge Vaughn Walker cast doubt on whether the proponents of Prop 8 had what is called ‘standing’ to appeal any decision he made in court. In federal courts, standing is determined according to the prescription laid out in Article III of the U.S. Constitution, and parties must be able to satisfy three requirements by showing 1) they will suffer particularized injury if the decision is not overturned, 2) there is a causal connection between this injury and the actions of the other side and 3) a court decision in their favor could redress the injury. The 3-judge panel of the 9th Circuit assigned to the Perry case also questioned the proponents’ standing, asking whether they could demonstrate how the striking down of Proposition 8 causes them immediate harm. (Essentially, it’s not enough to say striking down Prop 8 would harm marriages in general, because that doesn’t show particularized injury.) The panel decided in December 2010 to certify the question to the California Supreme Court, essentially asking them for an advisory opinion regarding the proponents’ standing under state law.
The CA Supreme Court accepted the 9th Circuit’s question in March 2011 and set a court date for six months later, refusing to expedite the proceedings at the request of the plaintiffs. On September 6, 2011, the case was argued before the California Supreme Court. On November 17, 2011, the court ruled that the proponents do have standing to appeal the decision under state law. The distinction between state and federal law is significant here. The California Supreme Court’s decision was in no way binding on the 9th Circuit, which still had to decide independently if the proponents have standing under federal law. Nonetheless, the state court decision is one the appellate panel could point to if it decided to grant standing to the proponents, and many observers believe the panel has indicated that it would essentially mirror the standing decision made by the CA Supreme Court.
In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled that the proponents of Prop 8 did have standing under Article III to pursue appeal. They cited the California Supreme Court’s decision that the proponents had standing under state law to represent the interests of the state of California, and issued a brief ruling on a unanimous 3-0 vote that the state court decision satisfied their concerns about standing.
During oral arguments in March 2013, the Justices expressed concern that a ruling which held that the proponents of Prop 8 do not have standing could allow state executives to nullify ballot initiatives that they did not like simply by refusing to defend them in court. Charles Cooper, arguing on behalf of the plaintiffs, told the Court that it should recognize a broad right to standing that would allow essentially any citizen of a state to defend a law in court if the state chose not to do so; the Justices expressed skepticism about this idea. Ted Olson, representing the plaintiffs challenging Prop 8, contended that the state could appoint an officer that would defend the law in court who would understand the state’s fiduciary interest in a way that official ballot proponents cannot. He argued that Cooper’s broad standing concept would essentially allow states to dictate federal Article III standing by saying that any individual could represent the interests of the state even if they cannot show a personalized injury to themselves.
The end game: Although the 9th Circuit ruled that the proponents of Prop 8 had Article III standing to appeal Judge Walker’s decision, the Supreme Court made its own decision on the standing issue. In their brief opposing Supreme Court review, the plaintiffs wrote that the proponents’ “claim of Article III standing to appeal is predicated on a novel legal theory: that a ballot initiative proponent who has suffered no injury personal to himself nevertheless may seek to vindicate the State’s interests in the validity of the initiative.”
In its June 26, 2013 ruling, the Supreme Court held that the proponents of Prop 8 did not have Article III standing to appeal Judge Walker’s decision.
We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here.
Because petitioners have not satisfied their burden to demonstrate standing to appeal the judgment of the District Court, the Ninth Circuit was without jurisdiction to consider the appeal. The judgment of the Ninth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for lack of jurisdiction.
The tapes (whether or not the video recordings of the Proposition 8 trial should be released)
The skinny: You may remember that almost more than three years ago (wow!), Judge Vaughn Walker, presiding over what was then called Perry v. Schwarzenegger in a district court, petitioned the 9th Circuit to include the Prop 8 trial in a pilot program the circuit was trying out in which cameras were allowed into the courtroom. The 9th Circuit said yes, but the proponents of Prop 8 went to the U.S. Supreme Court (a notoriously camera-phobic body). Over 140,000 people signed a Courage Campaign petition to the U.S. Supreme Court asking that the proceedings be televised. The U.S. Supreme Court ultimately stayed the broadcast of the proceedings in a 5-4 decision. Judge Walker withdrew Perry from the pilot program, and while the case was still filmed, the tapes (actually, digital recordings) were given to the litigants and placed into the court record under a seal.
After they appealed Judge Walker’s August 2010 decision to the 9th Circuit, Prop 8’s proponents filed a motion in district court to prevent Judge Walker from showing portions of the recordings, which he had done at a few speaking engagements. The plaintiffs, along with a coalition of media companies, filed their own motion to have the court unseal the recordings and make them public. At this point, Judge Walker had retired, and Judge James Ware, who replaced him, heard both sides’ arguments in district court.
In September 2011, Judge Ware ordered the tapes to be unsealed. Prop 8’s proponents filed an emergency request with the 9th Circuit to stay the order, which was granted, and appealed the decision. The 9th Circuit heard arguments regarding the appeal of Judge Ware’s decision on December 8, 2011. On February 2, 2012, the appeal panel issued its decision regarding the recordings, overturning Judge Ware’s ruling and ordering that the tapes remain under seal.
The end game: The opponents of Prop 8 and the media coalition did not appeal the ruling to the Supreme Court, leaving the Ninth Circuit’s order as the last word on the matter
Vacating Judge Walker’s decision (whether or not Judge Walker’s decision should be vacated on account of his sexual orientation)
The skinny: After Judge Walker’s decision, Prop 8’s proponents also filed a motion in district court (with Judge Ware again presiding) to vacate Judge Walker’s decision on the grounds that he failed to disclose that he himself was in a long-term relationship with a man (which he did announce publicly after the decision was released). In June, Judge Ware denied the proponents’ motion. (If you haven’t read his ruling regarding the motion, it’s worth taking the time to do so.)
In the 9th Circuit’s February opinion in Perry v. Brown, the panel ruled on a unanimous 3-0 vote that Judge Ware had not abused his discretion in denying the motion to vacate Judge Walker’s decision. Because of this, Judge Ware and Judge Walker’s decision will stand.
Where things are at today: In their brief to the Supreme Court seeking a writ of certiorari, the proponents of Prop 8 made no indication of a desire to revisit this issue with the high court, simply noting in a footnote that the issue had been raised at the trial and appeals court levels. The Supreme Court did not consider the issue in its decision.
November 23, 2011
