The Long and Winding Road of Marriage Equality Litigation

Attorney Molnar Explains the Progress of the Prop. 8 Cases

by MARK GABRISH CONLAN

Copyright © 2011 by Mark Gabrish Conlan for Zenger’s Newsmagazine • All rights reserved

Seeking social change through litigation is not for the faint-hearted — or for the impatient. At the June 25 meeting of the predominantly Queer San Diego Democratic Club, attorney Matt Stephens made that point when he began his presentation on anti-choice litigation by mentioning that the case challenging the Boy Scouts’ sweetheart lease deals on San Diego land was filed in 1999, has “sat in the Court of Appeals since 2006,” and was now at risk of being thrown out because a hostile Appeals Court judge wants to rule it moot because the original plaintiffs are now too old to be Boy Scouts. Likewise, at the club’s next meeting on July 28, attorney Jason Molnar, who got involved in California’s marriage equality cases as a staff lawyer for the Southern Poverty Law Center, brought along two hand-drawn flow charts, each over 20 feet long, detailing the convoluted history of California law on same-sex marriage since 2004.

That, Molnar explained, was the year Gavin Newsom, then mayor of San Francisco and now California’s lieutenant governor, took advantage of San Francisco’s unique status as both a city and county and unilaterally ordered his city clerk to grant marriage licenses to same-sex and opposite-sex couples equally. This directly contradicted Proposition 22, passed by California voters in March 2000 with 61 percent of the vote, which limited marriage to one man and one woman. Proposition 22, passed in reaction to the possibility that Hawai’i or some other state might allow same-sex couples to marry (Hawai’i’s supreme court made such a decision in 1996 but the state’s voters overruled it in 1999 before it could take effect), was the predecessor to 2008’s Proposition 8 but was merely an initiative statute, not an amendment to the state constitution.

Within a month of the start of same-sex marriages in San Francisco in February 2004, the California Supreme Court ruled that Newsom had exceeded his authority and the marriages were null and void. However, Molnar explained, “the court also held that the city and county of San Francisco was free to bring a suit challenging [the constitutionality of] the marriage laws.” That suit won at the trial level, lost at the state appeals court and won at the California Supreme Court by a 4-3 vote in May 2008. Anti-marriage groups, largely funded by the Mormon church and the Roman Catholic organization Knights of Columbus, responded by putting Proposition 8 on the November 2008 ballot, which was identical to Proposition 22 except that it amended the state constitution. “GAME OVER!” read Molnar’s flow chart on the state level — though in fact there was one more state supreme court hearing the next year, after which the court found that nothing in the California constitution blocked Proposition 8 but also ruled that it didn’t affect the validity of the estimated 18,000 same-sex marriages (including Molnar’s to his partner) performed in California before it passed.

The California Supreme Court’s ruling on same-sex marriage also said something else of great importance to the Queer community, Molnar explained. It “found that Gays were a ‘suspect class’,” he said, and thereby laws discriminating against them must be subject to “strict scrutiny,” the highest standard of civil-rights review and one the federal courts have so far only extended to laws that discriminate on race. The passage of Proposition 8 eliminated the state constitutional basis for recognizing same-sex marriage but did not affect the “strict scrutiny” standard for all other laws discriminating on the basis of sexual orientation.

With Proposition 8 in place, Molnar said, the only way for Californians to seek marriage equality through litigation was to file a lawsuit in federal court and challenge it as a violation of the equal protection clause of the U.S. Constitution. “There was a big debate in the Gay community on whether we should fight this at the federal level,” Molnar recalled. In the end, the decision didn’t rest with the Queer community leadership; attorneys Ted Olson and David Boies, who had been on opposite sides of the infamous 2000 case of Bush v. Gore that decided that year’s Presidential election, decided to recruit plaintiffs from San Francisco and Los Angeles for a federal suit. As they had done during the state level, the Southern Poverty Law Center had Molnar draft an amicus curiae (“friend of the court”) brief in the federal case, Perry v. Schwarzenegger, which argued that Proposition 8 “subjected the minority to ‘the tyranny of the majority.’”

The case was assigned — randomly, Molnar insisted — to federal judge Vaughn Walker, who happened to be a Gay man in a long-term relationship. “But that doesn’t matter,” Molnar said. What did matter was the way Walker ran the actual trial. Unlike most constitutional cases, which turn on matters of law and interpretation, Walker set out to build a record based on facts. “He made both sides put on evidence and witnesses,” Molnar recalled. “The other side ended up with just two witnesses [as opposed to the 17 called in favor of marriage equality], and one was better for us than them. It took five months, and Walker firmly rejected Prop. 8. … Walker found that Prop. 8 didn’t even meet the rational-basis test” — the weakest standard for a civil-rights case — “ and he also said, ‘Plaintiffs do not seek a new right. … They want Californians to recognize their relationships for what they are.’”

Walker, Molnar stated, “also said Prop. 8 ‘places the force of law behind stigmas about Gays and Lesbians, including that Gays and Lesbians are ‘not as good’ and they don’t form relationships comparable to those of heterosexuals.” Walker’s opinion included 80 “Findings of Fact” — which was significant because in a non-jury trial the judge is the “finder of fact” as well as the arbiter of law, and appeals courts are not supposed to question the finder of fact’s findings, only whether the law was correctly applied and, if the original judge made a mistake in his or her application of the law, whether that would have affected the outcome (what the law calls “reversible error”). Walker’s decision, Molnar said, was a smashing victory for marriage equality and Queer rights in general.

Instead, Molnar said, it’s been portrayed as a defeat because almost as soon as he made the decision, Walker issued a “stay” — a delay in making it effective — which the Court of Appeals later confirmed. “This is procedural, not substantive,” Molnar explained, “but it confuses a lot of people in our community and makes them think we’re losing when we’re actually winning.” Molnar also pointed to two other important things that happened before the case got to the Ninth Circuit of the federal appeals-court system, its next legal stop. One was that the U.S. Supreme Court ruled that the trial could not be televised live — as Walker had wanted to do; he had the trial videotaped but so far only a handful of law students have actually seen any of the footage.

The other development was the decision of California governor Arnold Schwarzenegger and his successor, Jerry Brown, not to appeal the case. Schwarzenegger and Brown, his attorney general, had both chosen not to defend Prop. 8 in the trial before Judge Walker and had allowed the initiative’s sponsors, Protect Marriage, to represent it in Walker’s courtroom. But the appeals court questioned whether the sponsors had standing — that is, a right to appeal — because they hadn’t established that they would personally be harmed by allowing same-sex marriages to occur in California. Then the staff of the Imperial County clerk stepped and argued that they had standing because if Walker’s decision stood, they’d have to perform same-sex marriages.

Instead of deciding the case, either on standing or on the merits, the appeals court punted, sending it back to the California Supreme Court for a ruling on whether state law allows initiative sponsors to appeal a decision invalidating their initiative if the government officials refuse to do so. Molnar’s chart was originally open-ended on when the California Supreme Court would actually hear that case, but before the meeting the Court scheduled a date — September 6, 2011 — and he revised his chart to insert the date. Kamala Harris, who replaced Brown as state attorney general when Brown replaced Schwarzenegger as governor, is on the same page as her predecessor and will argue before the state supreme court that the proponents don’t have standing. “If the California Supreme Court says they have standing, the 9th Circuit [federal appeals court] hears it on the merits,” Molnar said. “If not, [the proponents] can appeal.”

According to Molnar, Boies and Olson don’t want their case decided on the standing issue. “They want to win on the merits,” he explained. “It’ll probably be 90 days after the [September 6] hearing that the standing issue will be resolved. It’s possible the court will rule there is no one with standing, and unless the U.S. Supreme Court intervenes, Walker is upheld. It would be a victory, but a narrow one; it would probably allow marriages in California but would not address it in the rest of the country.” Other legal scholars have suggested that a ruling on standing might not even allow same-sex marriage throughout California; the anti-marriage groups are expected to argue that if they don’t have standing to appeal, Judge Walker’s ruling should be confined just to San Francisco and Los Angeles counties because that’s where the plaintiffs in the case were from.

The goal of Olson and Boies throughout the litigation has been the United States Supreme Court — and one Supreme Court justice, Anthony Kennedy, in particular. They, and most Court watchers, expect the other Republican justices — John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas — to oppose marriage equality, and the Democratic justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan to support it. They pinned their hopes on Kennedy not only because he’s the swing vote but because he wrote the majority opinions in the two most important decisions for Queer rights the U.S. Supreme Court has ever made: Romer v. Evans (1996), which declared an anti-Queer initiative in Colorado unconstitutional; and Lawrence v. Texas (2003), which threw out all state laws against sodomy.

Kennedy, Molnar noted, also wrote a more recent pro-Queer opinion in Christian Legal Society v. Hastings (2010), in which a Christian student group at Hastings College of the Law, a University of California-affiliated school in San Francisco, sought official recognition from the school administration even though they discriminated against Queers. By a 5-4 vote, with Kennedy again writing for the Court, they ruled the school didn’t have to recognize an openly discriminatory group like the Christian Legal Society. On the other hand, Kennedy provided the swing vote in the case that allowed the Boy Scouts of America to continue to discriminate against Queers and atheists on the ground that they’re a private religious organization, and it was he who wrote the opinion forbidding Judge Walker from telecasting the Prop. 8 trial.

Audience members asked whether California’s domestic partnership law is an adequate substitute for marriage. “It’s marriage apartheid,” Molnar answered. “‘I’m domestically partnered’ does not have the same meaning as ‘I’m married.’” He also briefly discussed the ongoing court challenges to the federal Defense of Marriage Act (DoMA), passed in 1996, which denied federal recognition and benefits to any same-sex couple married in a state that allowed it. And he fielded a question about whether polygamists or polyamorists could take advantage of a pro-marriage equality ruling at the U.S. Supreme Court by calling it “a slippery slope” and saying his position is that “marriage is between two consenting adults.” He did not discuss the likelihood that a U.S. Supreme Court decision invalidating Prop. 8 and declaring marriage equality nationwide would energize the campaign for a Federal Marriage Amendment banning same-sex marriages nationwide.

Molnar had spoken in San Diego at least once before, at a town-hall meeting June 3 sponsored by Equality California (EQCA) to discuss whether to put our own initiative on the November 2012 ballot to repeal Proposition 8 and restore marriage equality in California. Then he’d kept on his poker face and hadn’t revealed whether he thought that was a good idea. At the San Diego Democratic Club July 28 he made it clear he was against it because “there’s really nothing to gain. If we win [at the court level], it’s moot. If there’s no issue to be decided, there’s no case. The other alternative is if we lose, it doesn’t look good and we have to go through all the [anti-Queer] commercials again.”