The arithmetic of gay marriage

By MICHAEL KIRKLAND, UPI Senior Legal Affairs Correspondent   |   Aug. 5, 2012 at 3:30 AM   |   0 comments

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WASHINGTON, Aug. 5 (UPI) -- Supporters of California's Proposition 8, which bans gay marriage in the state, finally asked the U.S. Supreme Court last week to reverse a lower-court ruling that struck it down.

More than half of a 90-day stay on the lower-court ruling had drifted by before the petition filed by ProtectMarriage.com arrived at the high court. No California officials joined in the request for review.

California voters approved Prop 8, the California Marriage Protection Act, in 2008. The vote was slightly more than 52 percent for, nearly 48 percent against. It overturned a ruling by the California Supreme Court, which itself had overturned an earlier but similar proposition as unconstitutional.

This time opponents went to federal court where a federal judge declared Prop 8 unconstitutional.

A three-judge appeals court panel in San Francisco agreed 2-1.

"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," Judge Stephen Reinhardt wrote in the majority opinion.

But the panel stayed its ruling until Prop 8 supporters could ask the full 9th U.S. Court of Appeals for a new hearing. The full circuit rejected the case, but on June 5 it gave Prop 8 supporters a 90-day stay to file a petition for review at the Supreme Court, continuing its stay till the high court acts.

If the high court agrees to review -- the justices should grant or deny it late this summer or after the new term begins in October -- presumably it would issue its own stay until the justices handed down a final ruling.

Six states and the nation's capital recognize same-sex marriage.

The petition filed by ProtectMarriage -- its sponsor is a state non-profit, California Renewal -- argues the appeals court misinterpreted Supreme Court precedent. It also spends a good deal of its pages arguing that the state has a compelling interest in limiting marriage to a woman and a man.

"The unique procreative potential of sexual relationships between men and women implicates vital social interests," the petition says. "On the one hand, procreation is necessary to the survival and perpetuation of society and, indeed, the human race; accordingly, the responsible creation, nurture, and socialization of the next generation is a vital -- indeed existential -- social good."

On the other hand, the petition says "irresponsible procreation and child rearing -- the all too frequent result of casual or transient sexual relationships between men and women -- commonly results in hardships, costs, and other ills for children, parents, and society as a whole. A central purpose of marriage in virtually every society, then, is and always has been to regulate sexual relationships between men and women so that the unique procreative capacity of such relationships benefits rather than harms society. In particular, through the institution of marriage, societies seek to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world."

The petition says "prior to the recent movement to redefine marriage to include same-sex relationships, it was commonly understood, without a hint of controversy, that the institution of marriage owed its very existence to society's vital interest in responsible procreation and child rearing. That is why, no doubt, this [Supreme] Court has repeatedly recognized marriage as 'fundamental to our very existence and survival.'"

What happens next, as is so often true at the Supreme Court, appears to be up to Justice Anthony Kennedy.

It all comes down to arithmetic at the Supreme Court. And insight among its members.

It takes four votes on the nine-member court to grant review. Aside from Kennedy, who votes conservative most of the time, the court is split into a four-justice liberal bloc and a four-justice conservative bloc. If Kennedy joins either side, he makes it the majority.

A number of analyses, including one in the LGBT Weekly last week, point out this poses a problem for both blocs.

Should the four liberals vote to deny review, leaving Prop 8 struck down by the appeals court panel? Or should they vote for review, hoping that Kennedy will join them in any eventual U.S. Supreme Court decision affecting the whole country?

Same thing for the four conservatives. Should they vote to grant review -- assuming they want to preserve Prop 8 -- and risk Kennedy joining with the liberals in a decision after argument? Or should they vote against review, hoping to confine the lower court's ruling to California's borders?

The LGBT Weekly said Circuit Judge Reinhardt "basically gift wrapped his 9th Circuit opinion in Kennedy's [majority opinions in] Romer vs. Evans and Lawrence vs. Texas decisions, sticking on it a little note that said 'I just did what you told us.' But the door is also open for the court to strike down all same-sex marriage bans. If Romer and Lawrence represent a compromised form of Kennedy's support of freedom, not it's limit, he might lead the court right through that door. Even Justice Antonin Scalia, in dissent, admits that marriage equality is a natural consequence of Lawrence."

Meanwhile, Lyle Denniston reports in SCOTUSblog the challenges to the federal Defense of Marriage Act are perking along.

DOMA was passed by both houses of Congress and signed into law by President Bill Clinton in 1996. The act confines marriage to the union of a man and woman for federal purposes, regardless of whether a same-sex marriage was performed in a state that allows it. The lower courts have declared it unconstitutional, but supporters, including U.S. House Republican leaders, are asking the Supreme Court for review.

In one DOMA challenge, "Massachusetts officials are using two legal maneuvers in an attempt to get the Supreme Court to take on more constitutional issues surrounding the federal Defense of Marriage Act," Denniston wrote. "The state has filed its own [Supreme Court] petition for review of the 1st Circuit Court ruling that it won, in part. In addition, it has filed a brief urging the [Supreme] Court to hear the federal government's case against DOMA's constitutionality."

Instead of defending DOMA, the Obama administration challenges it in two petitions. And Clinton has since changed his mind and now opposes it. The administration has asked the high court to allow the Republican leaders of the House to defend the act at the Supreme Court.

For those wanting to read the tea leaves of Kennedy's mind, you have to go back to Romer and Lawrence.

In 1996's Romer vs. Evans, a number of Colorado municipalities had passed "ordinances banning discrimination based on sexual orientation in housing, employment, education, public accommodations, health and welfare services, and other transactions and activities."

Colorado voters adopted by statewide referendum Amendment 2 to the state Constitution, which banned legislative, executive or judicial action at any level of state or local government designed to protect the status of persons based on their "homosexual, lesbian or bisexual orientation, conduct, practices or relationships."

"Aggrieved homosexuals and municipalities" filed suit in state court. A state judge issued a preliminary injunction declaring Amendment 2 invalid, and was sustained by the Colorado Supreme Court.

The U.S. Supreme Court, in a 6-3 majority opinion written by Kennedy, said Amendment 2 violated the Constitution's equal protection clause.

"We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else," Kennedy wrote. "This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws."

Justice Scalia led the dissenters.

"Today's opinion has no foundation in American constitutional law, and barely pretends to," Scalia wrote. "The people of Colorado have adopted an entirely reasonable provision which does not even disfavor homosexuals in any substantive sense, but merely denies them preferential treatment. Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before. Striking it down is an act, not of judicial judgment, but of political will."

In 2003's Lawrence vs. Texas, a call describing a domestic disturbance (courts later found the call suspicious) drew a Houston police officer to the home of John Geddes Lawrence. Garner entered the apartment and discovered Lawrence having consensual sex with another man. The officer arrested Lawrence in his home for a deviate violation of the Texas sodomy statute, which banned two people of the same sex from engaging in intimate sexual contact.

Eventually the state appellate court, citing U.S. Supreme Court precedent, declared the statute constitutional.

In a 6-3 opinion, Kennedy said the statute violated the U.S. Constitution's due process -- or fair proceedings -- clause.

In ringing phrases, Kennedy basically told government to get out of the bedroom.

"Liberty protects the person from unwarranted government intrusions into a dwelling or other private places," he wrote. "In our tradition the state is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the state should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct."

Justice Sandra Day O'Connor did not join Kennedy's opinion, but did join in the judgment to form the six-justice majority.

"That this law as applied to private, consensual conduct is unconstitutional under the equal protection clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review," she wrote in her separate concurring opinion. "Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage [to save its anti-sodomy statute]. Unlike the moral disapproval of same-sex relations -- the asserted state interest in this case -- other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group."

Scalia again led the dissenters, and was almost prophetic on the issue of same-sex marriage.

"One of the benefits of leaving regulation of this matter to the people rather than to the courts is that the people, unlike judges, need not carry things to their logical conclusion," Scalia said. "The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts -- and may legislate accordingly. The [Supreme] Court majority today pretends that it possesses a similar freedom of action, so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada [in a decision that the Canadian Government has chosen not to appeal]. ...

"At the end of its opinion -- after having laid waste the foundations of our rational-basis jurisprudence -- the [Supreme] Court [majority] says that the present case 'does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.' ... Do not believe it."

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