Prop 8 Open Thread


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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84 Responses

  1. Avatar Tod Kelly says:

    Does saying “Yay!” count as chatting away?Report

  2. Avatar Jason Kuznicki says:

    From the decision:

    We need not and do not answer the broader question [of same-sex marriage itself] in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds. [i.e., those of whether the right, once granted, may be taken away through the initiative process.]

    Conceivably an anti-SSM amendment that prohibited not only marriage in name, but also all of the incidents of marriage would survive Fourteenth Amendment scrutiny.  A very narrow decision, then, and no doubt Prop 8 Part II will do just that when the voters get the chance to approve of it.

    • Yeah, this is my reading as well. I am unconvinced, however, that California voters have it in them to support a much toothier version of Prop 8.

      (FWIW, SCOTUSBlog agrees with us.)Report

      • Avatar Plinko says:

        I only got to peruse the first few pages that Burt kindly linked over at NaPP, but so far what I saw I am pretty much in agreement with Ryan B. here.Report

      • Avatar North says:

        I’d be astonished. Prop 8 was not very well fought against and had quite a lot of really dishonest assertions levelled against it and still only managed to eke through narrowly. Public opinion has been shifting in the wrong direction and SSM supporters have been learning more about how to deal with this sort of thing for a more draconian version of Prop 8 to pass electorally.Report

    • Avatar Simon K says:

      There’s no chance a Prop 8.2 that tried to take away civil unions would pass. A friend of mine actually has some interview data on this subject. It implies that the original prop 8  passed because people were being told about (largely unspecified or fantastic) harms to marriages and children, but didn’t see (and weren’t told about) much harm to gay people from not being able to use he word “marriage”.Report

  3. Avatar Sam says:

    Respectfully, if there’s a libertarian on Earth that isn’t thrilled with this decision, they aren’t a libertarian.


    • Avatar BradK says:

      Well, some libertarians believe that the only solution is for the state to remove itself from solemnizing marriage and leave it as a purely religious/ceremonial designation. That is, the elimination of the civil marriage license all together, and replacing it with some sort of domestic partner or civil union contract the way that same-sex couples do in many states.

      While this would accomplish an equalization of sorts, it seems more like a throw the baby out with the bathwater kind of thing.  Rather than allow teh gheys to get married as well, we simply won’t allow anyone.


      • Avatar Jason Kuznicki says:

        Marriage is many different things.

        It’s a religious rite, and in that aspect it absolutely must be private.

        It’s a commitment between two families, and in that aspect it’s no one else’s business.

        It’s also a set of legal benefits and legal protections for individuals and for their claims against the state.  Marriage settles or helps to settle a huge number of legal questions with a relative minimum of fuss. In the process, it keeps the state and its agents out of people’s private lives.

        This last part is definitely something that libertarians should love, and that gays and lesbians probably know a lot better than straight people do.   We’re the ones who usually can’t get married and have to make do with other measures.Report

        • Avatar BradK says:

          I agree completely, which is why I believe that the elimination (or renaming) of the civil marriage contract is a poor path to equality.Report

    • Avatar Jason Kuznicki says:

      I agree.  I just worry about tactics, too.  Mileage is allowed to vary there, even if we don’t really get any control over which tactics get used.


  4. Avatar BradK says:

    Great news, of course.  Now the whole process repeats (appeal, extension of stay of motion) to either the 9th en banc and/or to SCOTUS.

    It’s also interesting to note the time table of the appeal process.  Once the 9th set into motion they fast tracked it but then ran headfirst into the lethargy that is the California State Supreme Court — which took 9 months to decide if the defendant-intervenors had standing under CA law to challenge the appeal.  Once it was back in the 9th, they put this out fairly quickly.

    Apparently the wheels of justice turn quicker on some axles than others.Report

  5. Avatar Burt Likko says:

    I’ve not digested the whole thing yet. It’s a 2-1 decision, with Judge Smith finding a rational relationship (and using a more deferential rational basis test) on the grounds of “responsible procreation” and “optimal childrearing” theories. But the majority opinion digs into those in some detail.

    I’ll be all over this tonight, after work. For now, I call out the slip opinion at pages 37-38, discussing the cultural significance of the word “marriage.” An odd way to go about making that argument!Report

    • If only Groucho showed up in more dicta.Report

      • Avatar BradK says:

        Or Shakespeare:

        A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.  [pg. 37]

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  6. Avatar Burt Likko says:

    Also, my once-over leads me to another quick observation, which I included in a comment at the sub-blog I share with Will Truman:

    Looks like they relied on San Francisco’s argument that Prop. 8 is unconstitutional because it took away the pre-existing right of SSM. So if The Marriage Cases hadn’t found that right in the pre-Prop. 8 California Constitution, then they’d have had to have used a more broad theory.

    So it could be that the grounds for judicially voiding Prop. 8 would not apply to a state in which there had not been a judicial finding of SSM and then a subsequent political action to reverse the court. That means Iowa, Massachusetts, and Connecticut would likely be the only states other than California affected by the ruling.Report

    • Avatar BradK says:

      Don’t forget New Hampshire.  If the SoCon Republicans do somehow manage to get that state’s marriage equality law repealed then they should be able to leverage this decision, no?Report

    • Avatar James Hanley says:

      Looks like they relied on San Francisco’s argument that Prop. 8 is unconstitutional because it took away the pre-existing right of SSM

      I haven’t had a chance to read it yet, but this sounds like a very strategic decision.  E.g., “How do we strike down Prop 8 while minimizing the grounds on which the Sup. Ct. can find room to overrule us?”  But it also works perfectly well with the grand tradition of the courts as a conservative institution that traditionally likes to make its rulings as narrow as possible, rather than making broad sweeping claims.Report

  7. Avatar DensityDuck says:

    Glad to know that we support the idea of a two-to-one majority overturning a Constitutional amendment.  What other amendments are there that we don’t like? 

    PS considering the large minority vote in favor of Prop 8, I wonder why people aren’t spinning this as an example of rich whites and asians manipulating the system into disenfranchising blacks and latinoes?Report

    • State constitutional amendments can’t supersede federal constitutional amendments, regardless of who votes for what.Report

      • Avatar Jaybird says:

        “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

        I think it’d be fairly easy to argue that marriage and the recognition there of has not been delegated to the United States by the Constitution, nor prohibited by it to the States.

        Not that anyone gives a crap about the 10th, of course.Report

        • Avatar Jason Kuznicki says:

          Did the Tenth Amendment also delegate the power to set up discriminatory regimes?

          To the extent that it did, we have to consider the Fourteenth Amendment as well.Report

          • Avatar Jaybird says:

            Well, let’s see…

            “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ”

            Yep, it certainly seems to me that “Marriage” would qualify as a “privilege” under this.

            Fair enough.

            (Ironically, OWH Jr. (ptooey) saw the “equal protection” language as something to be waved away. In Buck vs. Bell, of all cases. He called it “the usual last resort of constitutional arguments”. Well, okay then.)Report

            • Avatar DensityDuck says:

              On the one hand, one might suggest that an open public election in which the entire population of the state was invited to participate is the very definition of “due process”.

              On the other hand, Kuznicki has recently posted that due process is meaningless if it results in outcomes we don’t like, so there we are.Report

              • Avatar Jaybird says:

                It seems to me that the “due process” clause is talking about the stuff before it up to the semi-colon. The stuff before the semi-colon is its own clause entirely… which turns the first part into “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States” and not “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…without due process of law”.

                And that’s without jumping to after the second semi-colon where we can play with “nor deny to any person within its jurisdiction the equal protection of the laws”.Report

              • Avatar DensityDuck says:

                Okay, I can get behind that. 

                Although it’s amusing to think about how we could use that reasoning to attack any kind of restrictions on gun ownership.  Since, after all, that’s not just a “privilege” but one that’s specifically called out in the Bill of Rights.Report

              • Avatar Jaybird says:

                Imagine: a court case going to the Supreme Court discussing whether “no guns allowed” signs were the Constitutional equivalent of “no Irish need apply”.Report

              • Avatar Jason Kuznicki says:

                Would it be the definition of “due process” if the state enacted my redheads-don’t-get-diplomas law?

                If no, then how do you differentiate?

                If yes, then due process is a sham and has nothing at all to do with fair treatment.

                This isn’t about laws I like or don’t like.  It’s about whether the majority can use the law simply, and only, to label a minority in a discriminatory way.  That’s what Prop. 8 did.  If you want to defend it, then say so.  Say “I think it is a proper use of government, by majority vote, to craft new and derogatory names for minorities.”

                Because that’s what you’re really defending.Report

              • Avatar DensityDuck says:

                “Would it be the definition of “due process” if the state enacted my redheads-don’t-get-diplomas law?”

                How did it get enacted?  Was it a statewide general election in which any eligible voter could participate, or was it a parliamentary maneuver which was put into effect despite the extreme negative opinion of the citizenry?

                “Say “I think it is a proper use of government, by majority vote, to craft new and derogatory names for minorities.” ”

                I think it is a proper use of government, by majority vote, to craft new and derogatory names for minorities (same-sex couples).  I think it is a proper use of government, by majority vote, to craft new and restrictive taxes on minorities (rich people).  I think it is a proper use of government, by majority vote, to craft new and restrictive regulations on minorities (manufacturing business operators).  There are all kinds of things that it’s a proper use of the government, by majority vote, to achieve.

                I further think that if the minorities don’t like it then they’re welcome to get their own ballot measure in place in an attempt to change it.  There is nothing in Proposition 8 that says “gay people can’t vote on anything anymore ever”.  Christ, if there’d been a ballot measure in 2011 about this then we wouldn’t even be here right now.Report

              • Avatar Jason Kuznicki says:

                I think it is a proper use of government, by majority vote, to craft new and derogatory names for minorities

                Then we will simply have to disagree.  I think that that’s an atrocious misuse of government power.

                I suspect you might feel the same way, if you found yourself a member of one of those minorities.  Or if you were to exercise just a teensy bit of empathy.Report

        • Avatar Burt Likko says:

          But the 14th Amendment prohibits restricting marriage rights to the States.Report

        • What the others have said, although to flesh it out:

          Marriage and its recognition is a power of the states. Try getting married in two different states and tell me that it’s not. The problem here is that the 14th Amendment contains all sorts of things like the Equal Protection Clause and the Due Process Clause that restrict how the states can exercise the powers granted by the 10th Amendment.

          In the case of California, assuming I’m reading the narrowness of this decision correctly, this was almost too straightforward. California granted same-sex and opposite-sex couples the exact same rights with different names meant clearly to convey a kind of moral disapproval of one side. Under 14th Amendment doctrines, this was like shooting fish in a barrel. Even under plain language it was about as easy a call as there’s ever been.Report

          • Avatar Tom Van Dyke says:

            Aye, Ryan: Volokh notes that civil unions were a “slippery slope” to requiring instituting gay marriage, by the court’s reasoning.

            I recall much cyberink expended on questioning the relevance and validity of slippery slope arguments, but never understood why. In our legal/political realm in particular, “fairness” demands that any accommodation given to x must be given to y.  [And any good sophist can obliterate the meaningful distinctions between most given x and y.]

            The half-a-loaf of civil unions wasn’t an accommodation as much as an unconstitutional insult.Report

            • Well, in this case in particular, the civil unions were the same thing as marriage. The 9th Circuit does not appear to have reached the question of what happens if you have a civil union that’s slightly different from marriage in some way, as I believe most are (correct me if I’m wrong). In this case, the two things were the same but with different names. That’s hard to defend on any kind of basis.Report

            • Avatar Jason Kuznicki says:

              I’m well into the decision now, and I have to say that “marriage lite” is the biggest loser here by far.

              Not to say that all slopes slip.  But this one?  Here?  Definitely.Report

    • Avatar Jason Kuznicki says:

      What other amendments are there that we don’t like?

      In the California constitution?  I’m sure that you and I could come up with a few…

      But I do notice you’ve ducked the question.

      Suppose that Californians went to the polls and said that, from now on, everyone who graduates from high school gets a “diploma” — but that if you have red hair, you don’t get a “diploma.”  You get a “graduation notice.”

      I submit that the particulars here are in every relevant way the same.  We need not address whether the characteristic is mutable or not.  What matters is that the initiative set up a distinction without any clear legal effect and without any relation to an interest of the state — and thus without any legal reason for being.Report

      • Avatar BradK says:

        That’s why the “gay is a lifestyle choice” meme is so popular with the anti-gay crowd as they believe it legitimizes bigotry.  And it’s usually followed by something insightful such as, “But you do have equal rights — you can marry anyone you choose (so long as they are of the opposite gender)”.Report

        • Avatar Jason Kuznicki says:

          It would still be an invidious distinction to deny redheads a diploma, even if they were allowed to dye their hair to get one.

          However mutable sexual orientation might be, it’s certainly not that mutable.Report

          • Avatar BradK says:

            I was thinking along the same lines.  In your scenario, a redhead could dye their hair and “play it straight” to get a diploma.  But then they’d have to live life in shame and deceit.  And if they stopped dyeing their hair they could face possible rescission of the diploma.

            As a self-identifying Kinsey 6 I would postulate that sexual orientation is inherently immutable.  What evolves is one’s own knowledge, understanding, and eventual acceptance of one’s nature (in an often hostile environment).  “Reforming teh ghey” is nothing more than institutionalized brainwashing and is never permanent.Report

            • Avatar Pub Editor says:

              There is also the wrinkle of the federal government and other states not recognizing or giving legal effect to “graduation notices”…but that is probably another discussion.Report

              • Avatar BradK says:

                That could be easily remedied with a Defense Of Diplomas Act (DODA).

                “Only Diplomas issued to natural non-redheads are valid or recognized by the United States”


              • Avatar Jason Kuznicki says:

                That’s an issue of federal law not properly settled by this case, which concerns only the question of whether a given state law — Prop 8 — did or did not violate the U.S. Constitution.Report

            • Avatar Jason Kuznicki says:

              I’m also a Kinsey 6, and aside from puberty itself (where almost everyone’s sexual orientation changes, from “indiscernible” to “present”)  I haven’t experienced any significant change in my sexual orientation.

              Some people say they do, however.  I’m not one to contradict them, so what I’m left with is the possibility that some people can change, probably a very few, and most people can’t.Report

      • Avatar DensityDuck says:

        So you totally ignore my concern about the precedent of a three-person court overturning a Constitutional amendment and then cry about how I’m ducking the question?Report

        • Avatar James Hanley says:

          So you totally ignore my concern about the precedent of a three-person court overturning a Constitutional amendment

          That precedent’s older than you are, Duck. It ain’t new with this case.  The Courts are there precisely for the purpose of deciding whether or not a state constitutional amendment (along with statutes, bureaucratic regulations, etc.) is amenable to the constraints of the U.S. Constitution.  Getting worked up about this “precedent” now is to try to join the game after the final buzzer.Report

    • Avatar Simon K says:

      To the California constitution? Most of it, and I’d be quite happy with one judge throwing the whole thing out as an offense against due process.Report

  8. Avatar Jaybird says:

    I can imagine a reading of “establishment of religion” that makes marriage “an establishment of religion” (not saying I agree with this reading, just saying I can imagine it) that makes heterosexual marriage something that the government ought no longer acknowledge at all and, through the 14th Amendment, means that the states shouldn’t either.

    I can imagine a take on marriage that makes marriage fall under the “free exercise thereof” and thus argue that same-sex marriages are, in fact, on an equal footing with heterosexual marriage when it comes to religion and insofar as the government has been recognizing religious marriages for the last forever, it should also recognize other religious marriages because, hey, free exercise is incorporated.

    What I am expecting is “interstate commerce” or “general welfare”.Report

    • Avatar DensityDuck says:

      Unfortunately, “marriage is a purely social construct, if the state wants a legal definition of partnership then it should invent an entirely secular Civil Union” has been rejected as a restatement of Separate But Equal.

      Since, apparently, the fact that a hetero Civil Union would be called “married” and a homo Civil Union would be called “Civil Union” is a grievous violation of human rights that prevents those people from ever being happy.Report

      • Avatar Stillwater says:

        But… Why the distinction in any event? Is it merely an affront to sensibilities?Report

        • Avatar Jaybird says:

          Watch out. If you really find yourself not caring about affronted sensibilities, they may make you a libertarian.Report

          • Avatar Stillwater says:

            Heh. Possibly. But the more I learn about all y’all moderate libertarians, the more I think we’re arguing about the edges of things. That the main policies are sustained by both of us and we argue about extent. I can live with being that kind of libertarian.Report

      • Avatar chris murphy says:

        Careful, this argument cuts both ways.  One could as easily say, “the fact that both hetero and homo Civil Unions would be called marriage  is a grievous violation of human rights that prevents those people (in this formulation opponents of gay marriage) from ever being happy.”

        Put this way it is the opponents of gay marriage who look silly. Indeed  this is basically the factual finding of the trial court. The Prop 8 proponents at trial failed to provide any facts demonstrating that gay marriage harmed anyone. If you read the trial transcript you will see the Prop 8 witnesses making fools of themselves trying to address this point.Report

    • Avatar DensityDuck says:

      After thinking about this some more, I can’t see it; your reasoning would mean that the Supreme Court would be declaring that, as far as the government was concerned, there is no such thing as marriage.  That’s a bit of a stretch for the case thus far.Report

      • Avatar Jaybird says:

        Only for the first paragraph.

        The second paragraph (the free exercise one) is the one that I actually like and I don’t know that I’ve ever heard an argument against that wasn’t based on “religions from the last X years don’t count as religions” kinda argument. (Which, I’m sure you can imagine, did not impress me much.)Report

  9. Avatar Pub Editor says:

    On a minor point, I am glad that the court decided that the petitioners have standing to defend Prop 8, even though the governor and state attorney general of California decided not to defend the law. A case of this importance deserves to be decided on the merits, not on a point of procedure or standing.

    An interesting question (ok, maybe not to most people, but to civ pro enthusiasts) is: will the appellants seek en banc review, and will the full 9th Circuit grant en banc review? If the full 9th Circuit does grant en banc review, I foresee 300+ pages of concurring and dissenting opinions by half a dozen judges.Report

    • Avatar BradK says:

      I don’t think any one knows which path they’ll take next.  No doubt the DI’s anticipated today’s decision and have been busily working on a strategy and the necessary briefs to ply it.

      The sad thing through this all is the stay (of the now 1.5 year old decision) remains in place and will likely be extended through to the bitter end.  There are already some 18,000 legally recognized same-sex marriages in CA so where’s the harm in a few more — even if (however unlikely) the decision is overturned and the door slams shut once again?Report

  10. Avatar Alan Scott says:

    What i want to know is–if this is appealed directly to the Supreme Court, How likely is the court to accept the appeal.  While the result of the decision is certainly novel, the decision itself (at least the appelate court’s decision) isn’t.  And there”s no circuit split on the issue of Gay Marriage.Report

    • Avatar Burt Likko says:

      As I see it, all nine Justices angled, in one way or another, to get themselves on the Court. And the reason that you angle to get on the Court is so you can decide this case.

      What kind of odds do you want on the Court denying certiorari? 100:1? I’ll take that action. The Supremes are going to grant certiorari.Report

      • Avatar Simon K says:

        You think? I mean, I’m no lawyer, but it seems the decision is so narrow its of almost no relevance beyond this one case. It applies only if the the state already has civil unions that are identical to marriage, a state court decides the difference in terminology is purely discriminatory and the state court is the overruled by a constitutional amendment. Its pretty unlikely that exact scenario is going to play out again. The Supremes may want to decide on gay marriage, but this case isn’t that any more – its a very specific and narrow ruling about California.Report