Repealing Rights: Proposition 8, Perry, and Crawford Contextualized

Introduction

The N.Y U. Review of Law and Social Change has asked how the Supreme Court should decide Hollingsworth v. Perry. In brief, the Court should hold that the decision in California to take the state constitutional right to marry the person of one’s choice away from lesbian, gay, and bisexual persons but not heterosexually identified persons, and to entrench that targeted partial repeal in the state constitution, while still giving same-sex couples the state-controlled legal incidents of marriage through a parallel status (“domestic partnerships”), violated the Equal Protection Clause. In the Perry litigation, the plaintiffs argued broadly that the federal Constitution’s fundamental right to marry and its guarantee of equal protection bar any state law limiting civil marriage to different-sex couples. On appeal, Plaintiff-Intervenor San Francisco made a narrower argument, which the U.S. Court of Appeals for the Ninth Circuit embraced. The argument was that stripping same-sex couples of the right to marry that had been extended as a matter of state law, while leaving available domestic partnerships with the state-law rights and obligations of civil marriage, is a denial of equal protection, regardless of whether states might ever constitutionally exclude same-sex couples from civil marriage. For the proponents of Prop 8 to win at the Supreme Court, they must defeat both the broad and the narrow arguments pressed by the various plaintiffs. The proponents and some of their amici are trying to saddle the Supreme Court with┬áthe all-or-nothing position that either Prop 8 is constitutional or no state marriage restriction is, relying on an aggressive reading of the Supreme Court’s decision in Crawford v. Los Angeles Board of Education. The proponents claim that Prop 8 must be understood as repealing a state-law right not required by the U.S.Constitution; that a mere repeal of such a ‘constitutionally optional’ right cannot violate equal protection; and that the only way to hold otherwise would be for the Supreme Court to hold that the Constitution guarantees same-sex couples’ equal freedom to marry in every state. This argument, however, misreads Crawford, and the Supreme Court can, in fact, invalidate Prop 8 without having to decide the broader question of whether any state may ever limit civil marriage to different-sex couples. While the optimal role of the Supreme Court and the definitions of improper judicial activism or abdication are much contested, there is widespread agreement that there is value in the Supreme Court’s not ruling on every possible issue, in leaving some things undecided sometimes. I address the symposium question of what the Court should do by arguing that it may, consistent with its longstanding equal protection jurisprudence, rule for the Perry plaintiffs on narrow grounds, Crawford notwithstanding, which might well bethe best course for the Court to take at this time.

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