My mind keeps coming back to a question posed by Judge Reinhardt Monday at the Perry vs. Schwarzenegger arguments in the Ninth Circuit. Which is a worse thing to do, he asked attorneys from both sides of the case, taking rights away from a group of people who were already exercising them, or never providing them those rights to begin with?
Reinhardt's question could be a pivotal issue in the Perry appeal. It's ironic, though, that it seems to turn on its head the old adage that "It's better to have loved and lost than never to have loved at all."
The arguments raised more questions about this then they answered. Charles Cooper, arguing for the Proposition 8 proponents, several times cited the California Crawford v Board of Education case, which concluded that states that have done more than the federal Constitution requires can return to the minimum provided by the federal Constitution's floor. Ted Olson, counsel for the plaintiffs challenging Prop 8, said that other cases, including those dealing with California's and Colorado's antidiscrimination laws, had suggested otherwise. But the answer may lie in the arguments made by San Francisco Deputy City Attorney Therese Stewart (who also happens to be the only LGBT-identified person who spoke at the arguments yesterday).
Judges Michael Hawkins, Stephen Reinhardt and N. Randy Smith for the U.S. 9th Circuit Court of Appeals in San Francisco (AP Photo/Eric Risberg, Pool)
San Francisco Deputy City Attorney Therese Stewart.
As Stewart pointed out, the California Supreme Court had held that the only possible reason to deny same-sex couples the right to marry when they were provided all the rights and benefits of marriage through domestic partnership was to convey that same-sex relationships were not as good as those different-sex couples form and that same-sex couples, and lesbian and gay people generally, deserve to be treated worse. California voters didn't change that reasoning; they couldn't have, noted Stewart. So when they took away same-sex couples' right to marry, voters necessarily were doing so because they wanted to have the state treat lesbian and gay couples worse and to convey they are unworthy of equality - and that is what is particularly offensive to the federal guarantee of equal protection, she continued.
What do you think? Which is worse: taking away a right or preventing someone from having it the first place? And is that general question the most significant question in Perry? Or is the more important matter that the right taken away was the right to equal treatment, and that it was taken away to intentionally designate one group of people as inferior?
Judge Reinhardt's question was one of many that gripped those of us who were lucky enough to be in the Ninth Circuit's imposingly ornate courtroom, listening intently to every word as many others followed along on CSPAN or read tweets about the proceedings or refreshed Prop8TrialTracker every two seconds. I believe I speak for most of us non-lawyers when I say that the first section of the hearings, the part about standing (which is just a fancy legal word for "having the right to sue"), was challenging to piece together.
From what I understand, the section boiled down to two questions: (1) Who has the right to defend a statute when the (official) defendants don't? and (2) If the 9th Circuit finds that those who appealed have no standing, what happens next?
Charles Cooper, lead attorney for the proponents of Proposition 8.
Lambda Legal's Marriage Project Director Jenny Pizer explained to us at yesterday morning's rally before the Ninth Circuit argument began that federal courts limit who can bring cases before them through the concept of "standing," (legal terminology for "having the right to sue.") "The court makes a distinction between litigants who are being harmed or who will be harmed [who have the right to sue or appeal], as opposed to people who [simply] have a strong feeling about an issue [who don't]."
As you likely know, California Governor Schwarzenegger and California Attorney General declined to defend Prop 8 in Perry. Judge Randy Smith noted that California's Governor can't veto voter-approved initiatives, and that California's legislators cannot amend them. By not defending Prop 8,were Schwarzenegger and Brown in essence violating that prohibition?
Adam Bink's paraphrase at Prop8TrialTracker, explained why not:
"Was the '...failure to defend Prop 8 ... a "nullification" of the efforts of the proponents and the choice of the voters in a way that was akin to a "veto" by the elected state leaders?' [my punctuation] Well, not really. Boies points out that the California Supreme Court was in fact asked whether Brown and/or Schwarzenegger were legally obligated to defend Prop 8. And, in fact they were asked by the 'Pacific Justice Institute' exactly that question. PJI was first denied by the 3rd District, and later by the California Supreme Court."
So, if government officials decide not to defend and don't have an obligation to do so, who, if anyone, does have the right ("standing") to defend the statute? What about the sponsors of an initiative?
Bink quotes Boies, who stated, "Appellants here do not have a particularized injury that the Supreme Court said you must have."
Robert Tyler, Attorney for Imperial County. Photo credit: Syd Peterson.
Well, if the sponsors of an initiative can't defend a statute, what about state workers, like, say, county clerks (who supervise the issuance of marriage licenses)? Robert Tyler, the attorney for Imperial County, argued that Imperial County Deputy County Clerk Isabel Vargas had standing to defend Proposition 8 because her duties would be altered depending on the fate of Perry. "She is in a legally conflicting situation," he argued.
Olson and Boies cast doubt on Vargas' role as a state worker and noted that, even if the County Clerk were considered a state official who might have standing, that wouldn't apply to someone lower on the totem pole.” It's interesting to note that, during the press conference after the arguments, a reporter asked the generally overwhelmed Tyler why he wasn't representing Imperial County's actual County Clerk. Tyler sniffed, "Ms. Vargas is my client and that's all I'm going to say about that. Next question!"
Tyler noted that California Government Code allowed a government official, such as a county clerk, to commission other persons within the clerk's office to act on the clerk's behalf. Olson pointed out how this was of no help, however, because the Imperial County Clerk had not commissioned Vargas to act on the Clerk's behalf.
So what happens if the 9th Circuit finds that those who have appealed have no standing? The attorneys and judges exchanged numerous ideas about impact of this might have on Judge Walker's ruling: Would that mean that only the Perry plaintiffs could marry, or would the broader injunction Judge Walker issued stand as written? And, if the Court determined that no parties have standing, would the 9th Circuit be entitled to say anything about the permissible scope of the injunction, or about the constitutionality of Prop 8 at all? Many question, but few clear answers to them were provided in yesterday's arguments.
Another important part of the proceedings occurred when Judge Smith questioned Stewart on Cooper's earlier statement that the state has an interest in preserving procreation. "Same-sex couples do procreate," Stewart replied. "Not in the old-fashioned way, but the point is that the state of California doesn't discourage LGBT people from being parents, or treat them differently [than parents with other family structures]." "In other words," Brian Leubitz at P8TT paraphrased, "if we are only fighting over a word, and no substantive differences at the state level, aren't we essentially creating a subclass?"
Cooper's response: "The word is the institution. If you redefine the word, you change the institution." Luebitz writes that this was ..."a big moment of the oral argument." He continued, "If the word is the institution, then the argument is just that gays and lesbians would '"stain’” the institution. The fact that Prop 8 is symbolic, it makes the insult obvious. This is classification for its own sake, and it violates the equal protection clause."
Back to Reinhardt's question: Which is more terrible: losing a right or never having it?
It makes me think back to the summer of 2008, a.k.a. The Summer When I Went To 30 Weddings. 18,000 same-sex couples got married in five months. Many Californians, and many outsiders with some queer link to California, had a chance to see what legally sanctioned weddings looked like. There's no doubt in my mind that we're better off with five months of marriage equality than with none.
But that's not what Reinhardt's question was asking. He put the focus on those who were doing the "taking away," who, in this case, are the approximately 52% of California voters who enacted Prop 8 in September 2008. And he may be on to something. Isn't it worse to call off an engagement than to never have asked someone to marry you? Isn't it worse to breach an agreement than never to have made it? And, as Terry Stewart explained, isn't it worse for a state to amend its Equal Protection clause (as Proposition 8 did) to intentionally treat people unequally than it is to have never understood that it violates equal protection to relegate same-sex couples to domestic partnerships instead of allowing them access to marriage?
Ted Olson noted how crazy it is that some same-sex couples are married in California while others can't be and that, if a California same-sex married couple divorces, they can't even remarry one another here. Maybe there's something to the notion that it's worse to have known what equality feels like and then to have it yanked away.
(Crossposted at LGBT POV)