In Prop 8 Case, Roberts Would Have Key Role

      The effort to dismantle racial segregation in public schools did not begin with Linda Brown in Topeka, Kansas. It began in earnest two decades earlier with a litigation strategy crafted by the future Supreme Court justice, Thurgood Marshall, that first took on segregated state law schools and then mounted attacks on segregation in school districts in several southern and border states.
      The battle to gain marriage rights for gay men and lesbians began in earnest two decades ago with litigation by three same-sex couples in Hawaii. They won an interim victory only to see it reversed by the state’s voters and then used to generate a backlash nationwide.
      As with the campaign for racial justice, these first two decades have seen more setbacks than advances for marriage equality. But the federal appeals court’s decision last week [Feb. 7] striking down California’s anti-gay marriage initiative Proposition 8 marks a significant turning point. And the ruling could be decisive if its logic is accepted by the U.S. Supreme Court.
      On the surface, the ruling by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown is narrow and limited. At trial, U.S. District Court Judge Vaughn Walker ruled definitively that denying marriage rights to same-sex couples violates both the Due Process and Equal Protection Clauses of the U.S. Constitution. On appeal, the three-judge panel led by the indomitable liberal Stephen Reinhardt declined to reach that ultimate question.
      Instead, Reinhardt wrote for a 2-1 majority in holding that the November 2008 ballot measure violated equal protection principles because it withdrew marriage rights recognized by the California Supreme Court only six months earlier for no reason other than “to lessen the status and human dignity of gays and lesbians in California.”
      That holding applies only to California. No other state has first granted and then withdrawn marriage rights for same-sex couples. Beyond the narrow holding in the Prop 8 case, however, the decision explicitly adopts findings that undermine the logic of the laws and constitutional amendments on the books in a majority of states to deny marriage to same-sex couples.
      As journalist Ari Ezra Waldeman wrote on the gay news site Towelroad, Reinhardt concluded that banning same-sex marriage does not help promote marriage by opposite-sex couples, as supporters of such bans contend. Nor does it promote “responsible procreation,” another of the goals claimed by anti-gay marriage advocates.
      In addition, Reinhardt emphatically rejected the logic of giving same-sex couples legal recognition with some term other than marriage, such as civil union or domestic partnership, at least if it comes with all the rights that marriage would entail. “The name marriage signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships,” Reinhardt wrote. Giving same-sex couples all the rights but not the designation, Reinhardt reasoned, singles them out for unequal treatment for no legitimate reason.
      In reaching that conclusion, the appeals court relied explicitly on the Supreme Court’s decision in Romer v. Evans (1996) striking down a Colorado ballot measure that barred the state or local governments from enacting laws to prohibit discrimination on the basis of sexual orientation. Justice Anthony M. Kennedy’s opinion for the majority found the law unconstitutional because it had no justification other than to treat gays and lesbians as second-class citizens.
      Legal analysts have viewed Reinhardt’s citation of Kennedy’s opinion as a barefaced attempt to gain his vote for affirmance if the Prop 8 case reaches the Supreme Court. Less cynically, the citation represents the normal path of common-law adjudication, where a principle from one case is logically applied to an analogous case later on.
      The Supreme Court followed that path in declaring racial segregation unconstitutional. In four successive cases, the court ruled that states could not segregate higher education by diverting African Americans to a law school in another state or a separate law school in the state itself or by admitting them to a graduate school but forcing them to use separate facilities. By the time of Brown v. Board of Education (1954), the logic was inexorable: legally enforced racial segregation in education could not stand.
      Even so, the justices were divided when Brown and its four companion cases were first argued. As is well known, the new chief justice, Earl Warren, worked hard after a second round of arguments to persuade reluctant colleagues to make the eventual ruling unanimous.
      The current justices are divided on gay rights. Conservatives Antonin Scalia and Clarence Thomas dissented in Romer and again in the 2003 ruling, Lawrence v. Texas, striking down laws banning gay sex. The newest conservatives, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., have not yet ruled in a case directly raising gay rights issues.
      Roberts would seem unlikely to play Warren’s role in forging a united court on same-sex marriage, yet he appreciates his responsibility for protecting the court’s public reputation. Public opinion on gay marriage is shifting, inexorably. Some polls find majority support, and all polls find strong support among young people.
      All eyes will be on Kennedy if the Prop 8 case reaches the Supreme Court. But they should also be focused on Roberts to see whether he tries to lead the court to adopt or resist the logic of the ruling and the growing acceptance of gay marriage in the public at large.