Calif. same-sex marriage ban ruled unconstitutional

February 9, 2012
Gay marriage fight may hinge on Supreme Court's Anthony Kennedy
By David G. Savage | McClatchy-Tribune News Service

WASHINGTON — The Supreme Court has nine justices, but if the constitutional fight over same-sex marriage reaches them this year, the decision will probably come down to just one: a California Republican and Reagan-era conservative who has nonetheless written the court's two leading gay rights opinions.

Justice Anthony M. Kennedy, 75, often holds the court's deciding vote on the major issues that divide its liberals and conservatives. More often than not, that vote has swung the court to the right. But on gay rights, Kennedy has been anything but a "culture wars" conservative.

One of his opinions lauded the intimacy between same-sex couples and demanded "respect for their private lives," provoking Justice Antonin Scalia to accuse him of having "signed on to the so-called homosexual agenda."

"He is a California establishment Republican with moderately libertarian instincts," Stanford University law professor Pamela Karlan said of Kennedy. "He travels in circles where he has met and likes lots of gay people."

Based on Kennedy's past opinions, Karlan is confident that if the Supreme Court takes up the issue of California's same-sex marriage ban, "it means Prop. 8 is going down to defeat," she said. "There is no way he will take it to reinstate" the ban.

Not all court observers share her prediction, but the uncertainty about how Kennedy might vote may, by itself, be enough to deter the high court from hearing an appeal of the decision by the U.S. 9th Circuit Court of Appeals. Four justices must vote for the court to consider a case, but a majority is needed to issue a ruling.

When an appeal reaches the high court, the four most conservative justices will face a tough choice: Vote to have the court hear the case and run the risk that Kennedy would side with the more liberal justices to go beyond the 9th Circuit decision and establish a nationwide right to same-sex marriage. Or turn the case aside, leaving same-sex marriage intact in California but setting no national precedent.

The man at the center of the speculation grew up in a Catholic family in Sacramento, where his father was a lawyer and lobbyist in the Legislature. Family friends included then-Gov. Earl Warren. As a Harvard law student, the young Kennedy visited the Supreme Court to meet with Warren, who was then chief justice.

As a justice since 1988, Kennedy has reflected at times both styles of Republicanism: the conservatism and respect for states' rights of Reagan, who appointed him, as well as Warren's devotion to civil rights and fair treatment.

Two years ago he wrote the much-disputed 5-4 opinion in the Citizens United case that said corporations and unions had a free speech right to spend freely on election campaigns. But also that year Kennedy wrote a 5-4 opinion that struck down as cruel and unusual punishment the laws in Florida and elsewhere under which juvenile offenders were sent to prison for life for crimes that did not involve a murder. Sounding a bit like Warren, Kennedy said it was unfair to close the prison doors forever on youths who had gone wrong.

Eight years ago he wrote the decision that declared unconstitutional laws in Texas and elsewhere that made gays subject to arrest for "deviate" sexual conduct. "The state cannot demean" same-sex couples by making their intimate, private conduct into a crime, Kennedy said.

In 1996, he wrote an opinion in a Colorado case called Romer v. Evans that formed the basis for Tuesday's 9th Circuit decision striking down Proposition 8.

Colorado voters had approved an initiative that stripped gays and lesbians of civil rights protections under state and local ordinances. Kennedy said the law could not stand because it was "born of animosity" toward homosexuals and took away their hard-won legal rights.

In Tuesday's decision, Judge Stephen Reinhardt of Los Angeles did not say gays had a right to marry as a matter of equal treatment. Instead, he focused on same-sex marriage in California and repeated Kennedy's view that voters could not take away the rights gays had briefly won. "Prop. 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry," Reinhardt wrote, citing Romer v. Evans.

Kennedy sits in the middle of two ideological blocs likely to split evenly on the question of same-sex marriage. The four conservatives - Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. - are likely to oppose the 9th Circuit's decision on the grounds that judges should not force such a change in state law. The four liberals - Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan - are likely to support the 9th Circuit's decision as a matter of equal treatment.

"Both sides will be nervous," said Michael Dorf, a Cornell University law professor who has clerked for Reinhardt and Kennedy. The California-only approach taken by Reinhardt would allow the high court to pass up the case, but he and others predict the justices will hear it. "This legalizes same-sex marriage in the biggest state. That's a big deal in itself," Dorf said.

Chapman University law professor John Eastman said conservatives had not given up on Kennedy.

"I know some people say Justice Kennedy will ask: Should we stop the progress now? I think Justice Kennedy will ask: Do we want to put a stake in the heart of an institution, marriage, that has done so much for society?" he said.

Professor Erwin Chemerinsky, dean of UC Irvine Law School, believes Kennedy will play the crucial role and write a broader opinion that undercuts other state laws banning same-sex marriage. "This is a court that wants to have the last word on major legal issues," he said.

David G. Savage writes for the Tribune Washington Bureau.

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Commentary: The tide is turning on gay marriage
James Werrell | The Rock Hill Herald
February 17, 2012

The battle to legalize gay marriage isn't over. But the sooner legalization comes, the better, not just for gays and lesbians but also for the nation as a whole.

The right for gays and lesbians to enjoy the full benefits of marriage expanded this month with a court victory for California gays and the legalization of gay marriage in another state. Gov. Chris Gregoire of Washington signed the bill passed in her state, making it the sixth, along with the District of Columbia, to allow same-sex couples to marry.

Pending legislation or ballot measures in Minnesota, Maryland, New Hampshire and Maine could legalize gay marriage in those states this year. The New Jersey Legislature has passed a bill legalizing same-sex marriage, but Gov. Chris Christie threatened to veto it.

The ruling against California's Proposition 8 by a federal appeals court earlier this month has been hailed as a landmark victory for gay marriage that might lead to a hearing before the U.S. Supreme Court. But legal scholars say this might not be the bill that coerces a comprehensive Supreme Court ruling on the issue.

Proposition 8 was a voter initiative to reverse a decision by the state Legislature to legalize same-sex marriage in California. It passed in November 2008 with 52 percent of the vote.

But in 2010, a federal judge struck down Prop 8, saying it was a violation of the civil rights of gays and lesbians in the state. And on Feb. 7, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that the lower court judge had correctly interpreted the U.S. Constitution and Supreme Court precedents.

But the appeals ruling was based on a relatively narrow finding. The panel essentially ruled that, because the state already had granted the right to gays and lesbians to marry, Proposition 8 had unconstitutionally deprived them of that right.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite sex couples," according to the opinion written by Judge Stephen Reinhardt, considered to be one of the court's most liberal judges.

But if the Supreme Court agrees to hear this case, justices will have a choice whether to consider the ruling only as it applies to California or to use it to issue a broader ruling regarding the constitutionality of gay marriage nationwide. In other words, this might or might not be the definitive Supreme Court ruling regarding same-sex marriage.

Nonetheless, the tide is turning.

It is interesting that the two attorneys joining to argue against Prop 8 before the court of appeals were Theodore Olson and David Boies. In 2000, Olson had represented George W. Bush and Boies had represented Al Gore in the Supreme Court case that ultimately determined who won presidency that year.

This time, they were on the same side.

Boies had an insightful take on the prospects for legalizing same-sex marriage. He thinks it's inevitable at some point but that it's also important to fight the battle now to extend the right of marriage to gays and lesbians, especially those who are nearing the end of their lives.

A younger generation, those who have grown up with openly gay friends and family members, have no objections to gay marriage, Boies said. Twenty years from now, people will be scratching their heads, wondering what the uproar was all about. It will seem as quaint as the legal quarrels over divorce and mixed-race marriages.

But Boies says we shouldn't just wait for the public to acquiesce. Like any crusade for civil rights, this has to be a battle to change people's hearts and minds - now.