Prop 8: Looking Forward

Yesterday the California Supreme Court voted to uphold Proposition 8 – at least in name. In a 6-1 vote, the Court held that it was constitutional for the State of California to limit ‘marriage’ to between a man and a woman – but that’s it. In the 135 page decision, the Court also held that the State could not withhold any of the tangible aspects of marriage from same-sex couples, only the title. This seems to imply that civil unions have been legalized in California, with some commentators speculating that this may lead the State to get out of the marriage game altogether. The Court also held that the 18,000 marriages that took place during the period between the repeal of the original ban and Proposition 8 were valid and would remain so. Protests, of course, ensued.

This effectively creates three classes of people: heterosexuals who can freely marry, unmarried homosexuals who cannot, and the current  married homosexuals. If this last group were to get divorced, they could not remarry. This triple caste system is clearly unconstitutional at the federal level, via the equal protections clause of the 14th amendment. This is where things get interesting: the two former opposing lawyers in the 2000 Bush v. Gore case, Ted Olson and David Boies, are teaming up to bring a federal case on just these grounds. But is this a good thing, with the current state of the Supreme Court? Many gay rights groups have for years dreaded a premature loss at the federal level, and have warned against such cases in the past.

This ties in nicely with the story of the new Supreme Court nominee, Sonia Sotomayor, picked to replace retiring Justice David Souter. Even with her appointment, the Court is still roughly balanced between left and right (she is replacing one of the more liberal justices). If a case were to come before the Court, it would likely have support from Justices Stevens, Breyer, Ginsburg, and Sotomayor, and would likely experience opposition from Chief Justice Roberts and Justices Alito, Scalia, and Thomas. That leaves the decision up to moderate Justice Anthony Kennedy, who is often termed a ‘conservative who occasionally votes with the liberals”. Kennedy’s record on civil rights issues is mixed but generally good - he opposes affirmative action but supports a broad reading of the ‘liberty’ protected by the Due Process clause of the 14th amendment.

With regard to gay rights, Kennedy has often taken a strong stance in favor of expanding Constitutional rights to cover sexual orientation. He wrote the Court’s opinion in the controversial 1996 case, Romer v. Evans,  invalidating a provision in the Colorado Constitution denying homosexuals the right to bring local discrimination claims. In 2003, he authored the Court’s opinion Lawrence v. Texas, which invalidated criminal prohibitions against homosexual sodomy under the Due Process Clause of the United States Constitution, overturning the Court’s previous contrary ruling in 1986’s Bowers v. Hardwick. In doing so, however, he was very careful to limit the extent of the opinion, declaring that the case did not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. In both cases, he sided with the more liberal members of the Court. Lawrence also controversially referred to foreign laws, specifically ones enacted by the Parliament of the United Kingdom and the European Court of Human Rights, in justifying its result.

Time will only tell.