The Fate of Prop Eight

by Mark Wilson

This Friday, the nine justices of the U.S. Supreme Court will enter a stately conference room at One First Street to decide whether to take up two same-sex marriage issues. One issue has rocketed up to the Court in the last year: the constitutionality of the Defense of Marriage Act (DOMA), a federal statute that defines marriage for federal purposes as only between one man and one woman. The other issue, which has taken four years to get here, is the constitutionality of California’s Proposition 8, the 2008 voter initiative that amended the state’s constitution to define marriage as between one man and one woman.

DOMA is a no-brainer. Of course the Supreme Court will have to decide the constitutionality of the federal statute, especially as more and more District Courts and Circuit Courts find DOMA unconstitutional. Prop. 8 is the stickler.

It takes only four justices to grant a writ of certiorari. And there are three possible scenarios. Conceivably, the four liberal justices could grant cert in order to uphold Judge Stephen Reinhardt’s opinion finding Prop. 8 unconstitutional. Then again, the four conservatives could grant cert in order to reverse it. Or, neither side could do anything. The onus is on the conservatives to take the initiative in reversing Judge Reinhardt’s decision. Unless they think they can get Justice Kennedy on their side, they might let California slip away into heathenism.

They could rationalize it pretty easily: Prop. 8 is only a state law and it suffers from the unique situation of outlawing something that the state supreme court had already found legal. (The California Supreme Court had determined that the state constitution required that same-sex marriage be available, prompting the initiative.) This is something Judge Reinhardt focused on in his opinion: the federal constitution doesn’t allow the state to giveth and then taketh away without a really good reason. Judge Vaughn Walker, at the trial court level, found that the reason for taking rights away was animus toward a particular group, an impermissible justification, according to Justice Kennedy in both Romer v. Evans and Lawrence v. Texas. Judge Walker’s opinion was a love letter to those decisions and also a challenge, daring Justice Kennedy to renege on everything he said in the prior cases.

Besides, the conservatives could say, states are the “laboratories” of the Union. It’s part of our collective national political schizophrenia—enshrined in the Constitution—to allow states to permit different wildly different things. The Court recognized as much back in Miller v. California, where it said that “contemporary community standards” determined what was obscene, without clarifying what the “community” was.

But even if the conservatives restrict the reasoning of Prop. 8 to California, it would be hard to ignore the fact that we’re dealing with the federal constitution. The Prop. 8 case is a test case for all the 29 state constitutional amendments that outlaw same-sex marriage. All nine justices know this. Even if Perry v. Brown gets its writ denied, there are still 28 more cases to go in the next few years. Is Chief Justice Roberts looking for efficiency or merely to get through the day?