Sign Up to Receive Email Action Alerts From Issa Exposed

The Prop 8 case: analyzing San Francisco’s Supreme Court brief

Prop 8 Prop 8 trial

By Jacob Combs

As the plaintiffs in the Prop 8 case did early last week, the City and County of San Francisco has filed its own brief in opposition to the Prop 8 proponents’ request that the Supreme Court take up the 9th Circuit appellate decision striking down the law.  Like the plaintiffs, San Francisco’s central argument is that the Supreme Court should simply decline to hear the case, allowing the 9th Circuit’s ruling to stand without making any wider precendential argument.  (For those who have been following the case from the early days, it is now technically known as Hollingsworth v. Perry.)

Taking a leaf out of the 9th Circuit’s ruling, San Francisco’s brief delineates the constitutional question at the heart of the appeal in its most narrow form: did California violate the Equal Protection Clause of the U.S. Constitution when it acted to withdraw only the title of ‘marriage’ from its gay and lesbian citizens without rescinding any of the rights and privileges that marriage entails?

Whereas the district court struck down Prop 8 in a broad ruling affirming that gay and lesbian individuals have a fundamental right to marry under the federal constitution, the 9th Circuit declined to take on that issue, instead arguing that the Constitution prohibits a State from taking away a previously enjoyed benefit from a group without a rational basis through the operation of an initiative campaign based on negative stereotypes.

San Francisco argues that the 9th Circuit was correct in basing this decision primarily on the Supreme Court case of Romer v. Evans, a 2003 ruling in which the Court struck down a Colorado law that rolled back legal protections for gays and lesbians and prohibited them from seeking those protections in the future through any means.  Follow the link for a step-by-step analysis of San Francisco’s opposition brief.

Romer v. Evans

Because of the appellate court’s reliance on Romer, the proponents of Prop 8 have argued that the 9th Circuit mistakenly applied the Supreme Court’s precedent, making the case that the appeals court erred “by distinguishing between removing an existing right from same-sex couples and never granting that right in the first place” (11).  They argue that the people of California simply returned things to the way they were in terms of marriage rights for gays and lesbians, but as San Francisco points out:

“[T]he Ninth Circuit’s understanding of Proposition 8 was compelled by the California Supreme Court, which had already determined as a matter of law that Proposition 8 did not ‘restor[e] the traditional definition of marriage,’ … but instead eliminated an existing constitutional right” (11).

San Francisco also argues that the distinction between the broadness of Romer, which denied gays and lesbians a wide swath of legal protections, and Prop 8, which surgically removed one right from LGBT Californians, does not refute the basic logic behind the 9th Circuit’s decision: in both cases, the city points out, it is the “peculiar operation” (12) of the laws that makes it so unlikely that either was passed for any legitimate governmental reason.

To this end, San Francisco pushes back in its brief against a claim made by the proponents that the Supreme Court case of Crawford v. Board of Education, where the Court upheld a California constitutional amendment prohibiting state courts from using busing to combat school segregation, provides a framework for upholding Prop 8.  In Crawford, the Supreme Court “reject[ed] the contention that once a State chooses to do ‘more’ than the Fourteenth Amendment requires, it may never recede” (13).

Crawford and Bruning

But as San Francisco argues, Crawford doesn’t in itself explicitly allow for the rolling back of rights; rather, it says that states may roll back such rights, but only when they have a compelling, legitimate interest in doing so.  It is that legitimate interest that the proponents of Prop 8 have repeatedly failed to articulate.

The proponents have consistently attempted to argue that Prop 8 encourages ‘responsible procreation’ in California, pointing in their brief to the Supreme Court to the 8th Circuit case of Citizens for Equal Protection v. Bruning, which upheld an anti-marriage equality amendment to the Nebraska state constitution by recognizing the state’s interest in “steering procreation into marriage by conferring a benefit on opposite-sex couples alone.”

In truth, though, Bruning argues against the proponents’ claim.  Nebraska offers no recognition whatsoever to gay and lesbian couples, and does not recognize their families in the eyes of law either.  In California, of course, the exact opposite is true, and the 9th Circuit correctly ruled that Prop 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” and thus “is not rationally related … to … [this purported interest, whether or not the interest would be legitimate under other circumstances” (17).

Baker v. Nelson

San Francisco then goes on in its brief to reject the proponents’ notion that Baker v. Nelson, a 40-year old Supreme Court case dismissing a Minnesota gay couple’s constitutional challenge seeking to be married, precluded the district court and 9th Circuit from deciding the Prop 8 case.

Because of Supreme Court procedure at the time, Baker had the effect of becoming binding precedent.  As San Francisco points out, the 9th Circuit explicitly avoided the issue of a fundamental right to marriage for gays and lesbians, focusing only on whether California could take away the title of ‘marriage’ from gay and lesbian couples.  Because of this, the Prop 8 case in no way asks the same constitutional questions, nor does it raise the same issues, that Baker did.

As with Bruning, Minnesota offered no rights or recognition to gay couples when Baker was decided; California does.  In addition, Supreme Court precedent regarding gay people has changed since 1972, most notably in the 2003 Lawrence v. Texas decision upholding gays and lesbians’ right to sexual privacy under the Due Process Clause.  For both these reasons, Baker should not apply as binding precedent over the Prop 8 case—a point which even the dissenting judge on the 9th Circuit panel agreed with, San Francisco notes.

Other marriage equality cases in the courts

Just as importantly, San Francisco argues, the issue of the constitutionality of laws denying gays and lesbians equal marriage rights is a question that should continue to make its way through the courts.  The 9th Circuit’s decision specifically limited itself to California, and would have little impact on other states in the circuit, as evidenced by the Hawaii case of Jackson v. Abercrombie, in which a district judge upheld that state’s lack of marriage equality.

Equal marriage rights continue to be debated at the state level, with four ballot campaigns on the issue scheduled for this November.  And, of course, there are currently six petitions seeking the Supreme Court’s review of the Defense of Marriage Law, and any decision on DOMA and the proper level of judicial scrutiny for laws affecting gays and lesbians would no doubt have an effect on laws regarding marriage for gays and lesbians.


And finally, as San Francisco notes, there is the question of the proponents’ standing to pursue the appeal in federal court.  Because none of the official defendants of Prop 8 defended the statute in court, the proponents of the ballot measure intervened to do so instead.  Under previous Supreme Court precedent, it is unclear if such groups have standing to pursue federal appeals.

The 9th Circuit, in ruling that the proponents did have standing, relied on the California Supreme Court’s decision that the proponents had standing under California state law.  But the Supreme Court would have to take up this issue itself, potentially forging new ground on the issue of standing, which San Francisco counsels against.

The next step

Taken as a whole, San Francisco’s brief follows the contours of the plaintiffs’: the 9th Circuit was correct in using Romer to uphold the district court decision striking down Prop 8 and created no inter-circuit conflicts in so doing, so the Supreme Court should decline to take the case.  And even if the high court doesn’t agree with the 9th Circuit, the briefs say, the Prop 8 case isn’t the one they should take up to decide the issue of marriage equality, because of the standing question.  Yet even if they do take up the case, the briefs go on to argue, Prop 8 still should fail because it doesn’t effect any rational governmental purpose, least of all promoting responsible procreation.

Seen in this way, the two briefs lay out legal arguments that offer a series of fallback positions: the Supreme Court should accept this argument, they say, but if it doesn’t, it should accept this other argument instead, and if it doesn’t—and so on.

What’s most striking is that AFER (the organization that filed the Prop 8 lawsuit in the first place) originally was adamant about its desire to progress the case to the Supreme Court.  This was the case, they argued, that would establish full federal marriage equality in America.  They were certainly right that the Prop 8 case had that potential, and the district court decision powerfully made a sweeping argument in favor of that position.

But the 9th Circuit irrevocably changed the game.  And whether it was correct in its reasoning or even wise to do so, that’s the nature of the judicial game.  It’s why we have three levels of judicial review.  Because of the 9th Circuit’s ruling, the Prop 8 case is no longer about marriage equality, at least in terms of legal arguments; now it’s about whether a state can take away a liberty that it has afforded a class of citizens without offering any legitimate governmental purpose.

AFER and San Francisco’s decision to change their arguments is a wise one: for now, the best ruling for the Prop 8 case at the Supreme Court is no ruling.  The 9th Circuit’s opinion would stand, Judge Walker’s decision would be limited but still return marriage equality to the nation’s most populous state, and we would wait for another marriage equality case to be heard by a hopefully friendlier Supreme Court.

San Francisco’s Opposition Brief (h/t to Kathleen for providing this) via Scribd:

[scribd id=103928989 key=key-dkcm40seo0vdcgzidmn mode=scroll]


  • 1. Sagesse  |  August 31, 2012 at 10:15 am


  • 2. MightyAcorn  |  August 31, 2012 at 10:48 pm

    Who the heck is Hollingsworth???

  • 3. guywaters  |  September 1, 2012 at 11:10 am

    Dennis Hollingsworth, Republican former California State Senator and Minority Leader of the California Senate until he was termed out in 2010. He supported Prop 22 and Prop 8.

  • 4. MightyAcorn  |  September 2, 2012 at 1:56 pm

    Thank you– it's interesting that he's now the named defendant/intervenor, since I don't believe his name ever came up at trial. Did the case name change when the Ninth ruled initiative proponents could intervene?

  • 5. SHOES THROWER  |  September 1, 2012 at 11:29 am

    Nebraska offers no recognition whatsoever to gay and lesbian couples, and does not recognize their families in the eyes of law either.

    So San Francisco is, in effect, arguing that California can ban same-sex marriage only if it goes as far as Nebraska did.

    But as San Francisco argues, Crawford doesn’t in itself explicitly allow for the rolling back of rights; rather, it says that states may roll back such rights, but only when they have a compelling, legitimate interest in doing so. It is that legitimate interest that the proponents of Prop 8 have repeatedly failed to articulate.

    San Francisco misstates the point of Crawford. It rejected "the contention that, once a State chooses to do "more" than the Fourteenth Amendment requires, it may never recede" 458 U.S. 527 at 535. An opposite interpretation has "no support in the decisions of [the Supreme] Court" id. Thus, under Crawford, the question was whether California was doing more than what the 14th Amendment required when it legalized same-sex marriage. Answering that question inevitably answers the question of whether the 14th Amendment required California to enact same-sex marriage in the first instance.

    In Dayton Board of Education v. Brinkman, 433 U.S. 406 (1977), the Supreme Court held that "[t]he question of whether a rescission of previous Board action is, in and of itself, a violation of appellants' constitutional rights is inextricably bound up with the question of whether the Board was under a constitutional duty to take the action which it initially took…If the Board was not under such a duty, then the rescission of the initial action in and of itself cannot be a constitutional violation. If the Board was under such a duty, then the rescission becomes a part of the cumulative violation, and it is not necessary to ascertain whether the rescission ipso facto is an independent violation of the Constitution." 433 U.S. at 414 (internal citations omitted)

    Proposition 8 repealed same-sex marriage. As such, under Brinkman, its constitutionality turns on whether California had a constitutional duty to "take the action" of recognizing same-sex marriage.

  • 6. SHOES THROWER  |  September 1, 2012 at 11:43 am

    One more note.

    The Department of Justice admitted that the Supreme "Court’s ordinarypractice is to grant review when a court of appeals holdsa federal statute unconstitutional, even in the absence of
    a circuit conflict." See United States Response Brief to Petition for a Writ of Certiorari Before Judgment, Windsor v. United States, 12-63, at 17

    And in this case, there is a circuit conflict. See Standhardt v. Superior Court, 77 P.3d 451 at 465 (Az. Ct. of App. 2003), In Re Marriage of J.B. and H.B., 326 S.W.3d 654 at 680 (Tx. 5th Cir. 2010)

  • 7. Leo  |  September 1, 2012 at 2:45 pm

    Last time I checked, Prop 8 wasn't a federal statute.

  • 8. SHOES THROWER  |  September 2, 2012 at 9:36 am

    True, but there does not seem to be a reason why the Supreme Court should treat a state constitutional amendment differently from a federal statute for the purposes of granting cert, and no evidence that it does.

  • 9. Mike in Baltimore  |  September 2, 2012 at 11:28 pm

    Sorry, ST, but the 'Az. Ct. of App.' (aka Arizona Court of Appeals) is NOT a federal court, but a state court.

    And 'Tx. 5th Cir.' (aka Texas 5th Circuit Court of Appeals is NOT a federal court, but a state court.

    The definition of 'circuit conflict' means a conflict between different courts in a state, OR between different FEDERAL Circuits (and state courts are NOT Federal courts).

    And if a state constitutional amendment is contrary (or is alleged to be) to the Federal Constitution, then the Supreme Court can, and does, have jurisdiction, no matter if there is a circuit conflict or not.

  • 10. Jay  |  September 3, 2012 at 4:05 pm

    Besides, the question is not whether the U.S. Supreme Court can decide to grant cert, but whether it will decide to do so. Although the Court ordinarily grants cert in instances with two federal circuits come to different conclusions on a particular issue (which is not the case here), the specific cases that are considered are difficult to predict. Moreover, he Supreme Court does not explain why it grants cert, it simply does or does not. I would love to be a fly on the wall in the conference on which cases the justices decide to accept.

  • 11. TomTallis  |  September 5, 2012 at 3:11 pm

    " It is that legitimate interest that the proponents of Prop 8 have repeatedly failed to articulate."

    You mean "because God says so" is NOT a legitimate interest. I'm really surprised that some hate group hasn't filed a brief on behalf of "God." It seems to me to be a tacit admission that their "God" doesn't exist.

  • 12. TomTallis  |  September 5, 2012 at 3:12 pm

    Or perhaps "God" doesn't have an Article III interest in the case… LOL!

  • 13. ammo for sale online best  |  April 23, 2014 at 12:16 pm

    You actually make it seem so easy with your presentation but I find this topic
    to be really something that I think I would never understand.It seems too complicated
    and extremely broad for me. I am looking forward for your next post, I’ll try to get the hang of

    my weblog … ammo for sale online best

  • 14. ammo for sale  |  April 27, 2014 at 6:02 am

    Great web site you have here.. It’s hard tto find good quality writing like yours these days.
    I seriously appreciate people like you! Take care!!

    My homepage; ammo for sale

  • 15. Nelson Fisher  |  April 28, 2014 at 7:27 pm

    I love what you guys are usually up too. This sort of clever work and exposure!
    Keep up the great works guys I’ve added you
    guys to my own blogroll.

    Here is my page: Nelson Fisher

Having technical problems? Visit our support page to report an issue!