Mr. and Mr. Smith Go to Washington: Gay Marriage and the U.S. Supreme Court - Part Three

Constant Readers,

Here's my last bit on gay marriage for awhile. Before I leave this subject, I want to address the issue of how this would go to the Supreme Court.

Here are parts One and Two.

But let me take a minute to say that the quality of comments left by my brilliant readers on the prior posts makes me so proud! Y'all are wicked smaht!!

Hugs and kisses!

Moving on...

Right after the news broke that a couple of fancypants lawyers were taking the case of gay marriage to the federal courts, nine high-profile pro-same-sex marriage groups got together and issued a press release asking that the lawyers to Pretty Please NOT go the federal route. "It is by no means clear that a federal challenge to Prop. 8 can win now" it says. (Press release here: Download Don't go to the Supreme Court Press Release.)

Of course, there are good reasons to go the way of federal courts. For one, it is less of an expensive mess than one election or multiple elections. It also offers a finality that ballot propositions and regular laws do not - people and legislatures can giveth and can also taketh away. Courts don't do that as regularly - and if they change their minds, it's usually in favor of expanding rights, not shrinking them. Plus some people are just frustrated at dealing with the masses and want to get it over with already.

On the other hand, there are pitfalls to taking this matter to the federal courts. 

1. The case will probably be dismissed in about 30 seconds

The case that was just filed is the Perry case and here's the Complaint: Download Federal Court Complaint

NOTE: Generally, to bring a case in federal court, you need to be complaining about federal law. In this case, the way the Perry plaintiffs are getting in the federal door is by arguing that their rights under the United States Constitution (forget the CA State Constitution) are being violated by California's different  treatment of same and opposite marriage.

Back in 1972, after a Minnesota State Supreme Court held that it was okay to prohibit gay marriage, the plaintiffs appealed the case (Baker v. Nelson) directly to the United States Supreme Court, alleging, just like in Perry, that their federal constitutional rights were being violated.

NOTE: The plaintiffs in the Baker case could appeal directly to the U.S. Supreme Court because they were appealing the ruling of a State Supreme Court. In the present gay marriage case, the plaintiffs aren't appealing any State Supreme Court ruling - they are NOT saying that the Prop 8 case as wrongly decided. They are challenging the LAW in California, not a final state court ruling, so Perry has to go through lower courts first.

Okay, so, plaintiffs in the Baker case went directly to the US Supreme Court which, in a single sentence, dismissed the appeal “for want of a substantial federal question.”

This is very important. 

Allow me to translate for the Supreme Court: Whether gay people are allowed to marry in Minnesota has nothing to do with the United States Constitution. In fact we think this case is so dumb that we're not even going to fully explain this ruling.

Of course that case is 37 years old and nowadays, the Supreme Court would probably think it's at least worth explaining why the case is being tossed out, but Baker is still the law. And it is binding on lower courts.

So, the District Court will probably throw out the Perry case because current legal precedent says: whether gay people are allowed to marry in California has nothing to do with the United States Constitution. (Remember: without a U.S. Constitutional claim, there's no right to be in federal court.)

If that happens: the plaintiffs will probably appeal that dismissal to the Ninth Circuit. If the Ninth Circuit throws it out, plaintiffs can appeal to the U.S. Supreme Court and try to get them to reverse the Baker ruling. (There's no guarantee that would actually happen, by the way.) A reversal by the Supreme Court would just reverse the rule that federal courts can't hear gay marriage claims. Nothing more.

If all that happens: Perry plaintiffs would have to go back to the District Court to litigate the heart of the case: whether, in marriage, separate but equal is constitutional. 

2. Even if the federal courts can hear the case, there's no guarantee that the Supreme Court will

Let's assume the federal courts are ready to listen to the merits of the Perry case. The plaintiffs have a right to have the case heard in a District Court, and then a right to appeal that case to the Ninth Circuit. But that's where it stops. At that point the Supreme Court could choose to hear the case or not.

When it comes to federal court cases, the Supreme Court is more likely to take a case if two circuits disagree on the application of constitutional law. So, if the Ninth Circuit (where the Perry case would go - because the Ninth Circuit covers California) ruled one way on the right to gay marriage under the U.S. Constitution and, oh...lets say the Second Circuit (New York State) ruled a different way - like a parent with two squabbling kids, the Supreme Court can step in and settle the dispute.

Without that "split in the circuits" it is less likely that the Supreme Court would take the case. 

If the Supreme Court chooses not to take the case: the Ninth Circuit ruling (last in time, highest court) would be the law in California - for better or worse.

A quick recap: While federal courts would initially have to toss out the case because of the Baker v. Nelson precedent, assuming the Supreme Court reverses itself, the law in California would be decided by the last, highest court to rule on the issue. Which would be the Ninth Circuit if the Supreme Court won't take the case.

3. If the Supreme Court does take the case...

Alright, lets assume that the U.S. Supreme Court reverses the Baker decision and decides to take the case (by the way, the year is like 2014) what would those guys say?

First, remember that this is years away. It is likely that Justice Stevens (he's 89) and Ginsburg (cancer scare) will retire here soon, so the leanings of their replacements would be important.

If the Supreme Court Rules in Favor of Gay Marriage: States would have to change their laws, constitutions and commandments to afford same-sex couples the right to marry. 

If the Supreme Court Rules that Laws Treating Same and Opposite-Sex Couples Differently Are Constitutional: States would not then have to treat gay and straight couples differently.

U.S. Constitutional rights are a floor, not a ceiling, so states are free to afford MORE rights than the U.S. Constitution - just not fewer rights.

HOWEVER because the "rights" section of most state constitutions are lifted from the U.S. Constitution, state courts often look to the Supreme Court's interpretation of those clauses -  the "equal protection" clause, for example - as instructive on state equal protection issues. So, while a negative ruling at the Supreme Court would not mandate discriminatory state laws, with state courts looking to the Supreme Court for advice, it would probably limit the extent to which gay marriage advocates can rely on state courts for protection. 

Plus, states could roll back rights like adoption for gay couples without fear of a serious legal challenge.

Phew!

There you have it. 

A number of things could happen here, but they won't happen soon.

ON A PERSONAL NOTE: When I was little, my parents were engaged in a bitter struggle to get custody of my siblings. (I won't get into the gory details here, but it was pretty bad.) The laws of the states of Georgia and Alabama caused so much confusion in my little brain that I decided I wanted to be a lawyer at the age of 8. (They were the only people who seemed to be able to understand the system.) What I'm trying to say is this: I write so much about this subject because I know how hard it is to feel like a family and have the state say it ain't so. Or that your family is second-class. And I know it's nothing compared with the frustration so many gay couples feel today. I only hope I've done this issue justice for now. 

If you have questions, please feel free to email me.

-Melissa

Comments

[Puritan Peddlers]

This sounds quite feminine, but I'm personally touched by your story and parents' custody battles. I e-mailed you awhile back, (also live in Georgia and I believe you said you grew up in Cobb County, home of the biggest fraud, Newt Gingrich -- i.e. taking money out of the public education coffers to fund his campaign against Ben Davis). Here's where the Court needs to go with the minority and why:

Polls indicate a majority of Americans believe our country was founded on Christian principles. This couldn't be further from the truth based on Roger Williams and Thomas Jefferson's beliefs that government and religion shouldn't be tainted by each other and remain separated. Jefferson spoke about the "Wall of Separation" when the Danbury Congregationalists were trying to dictate how public policy should be enacted. Countless records show these same sentiments by Benjamin Franklin, James Madison, and John Adams. So, I'm pissed when I see "The Purpose Driven Life" guy or as I call it, "My Purpose for Fast Track Wealth" be taken remotely serious.

The data will lead the way on this one. Bottom line: Heterosexuals should feel just as comfortable and secure in their contractual commitments as homosexuals. Eventually, traditions are meant to be broken. We've seen this with many movements.

I've learned on average it takes seven years in this country to adopt a healthy, white baby. Those who adopt also come to the realization it takes hard work to be a parent, and they don't want to go through with it. So, the child is moved from foster home to foster home and has to prove to Family Services they provide the best suitable environment to meet the child's needs.

Your website is bookmarked and enjoy reading it from time to time. Oh, I only wish I was graced with a sarcastic guy like Walter when I attended Economic Development meetings during my journalism stints. I'm sure he's quite the character when talking with him in person.

San Francisco has a great governing model and other municipalities should learn from your Supervisors and Mayor Gavin N. I'm currently pursuing a career with the Georgia Democratic Party in Atlanta where this state turned 17 counties blue in the last election. Obviously, the momentum is there and will do everything I can to keep it that way. My relatives have a more daunting task in their overwhelmingly Conservative State of Nebraska.

[Be_devine]

Great analysis, Melissa! I think there's a pretty good chance that Judge Walker hears this case on the merits.

Unlike the plaintiffs in the Baker v. Nelson case, the plaintiffs here assert federal jurisdiction based primarily on 42 U.S.C. section 1983. That law says that "Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, Suit in equity, or other proper proceeding for redress . . ."

So Perry's lawyers have an argument to distinguish this case from the holding in Baker, which didn't raise section 1983 as a jurisdictional hook. Whether or not Judge Walker buys the argument probably depends on whether or not he wants to write the opinion in this very public, controversial, and juicy case. My bet is that he takes it.

[HMR]

Hey -- I tried to find the link to email you, but it either doesn't work from where I am, or I've got a temporary "click here" blindness today.
I was wondering if you've been following the Protect Marriage litigation in federal court that involves 1) Prop 8 and 2) California's disclosure laws. The issues are maybe not all that exciting, but it's going to be an interesting case (I think).

-H

[Melissa Griffin]

@HMR - I haven't heard of it. Can you tell me more? Nothing is too mundane to follow on this very important issue. My email is melissagriff@gmail.com