Court Ruling on Gay Marriage Ban

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ASU Law Professor Zachary Kramer offers his legal analysis of a court ruling calling California’s gay marriage ban unconstitutional and what the decision could mean for a similar ban in Arizona.

Ted Simons: On the Northwest corner of courthouse plaza in downtown Prescott, stand as historical marker proudly declaring the city's status as Arizona's first capital. President Abraham Lincoln proclaimed Arizona a territory in 1863. Most assumed the capital would be Tucson, then the state's largest and most cultured city. But the region's military commander having just driven the confederates out of Tucson a year before, persuaded the territorial government to bestow the honor to camp Whipple. For five months, the officers of the territorial government of Arizona were operated from tents and log cabins here before being moved to Prescott. The state capitol was moved one more time to Phoenix in 1889.

Ted Simons: The ninth circuit court of appeals ruled this week California's ban on Gay Union is unconstitutional. Here to talk about that ruling and its impact on Arizona is ASU law professor Zachary Kramer. Good to have you here. Thanks for joining us.
Zachary Kramer: Thank you, thanks for having me.
Ted Simons: Let's talk about the case. What was, is, California's Prop 8, what was ruled on here?

Zachary Kramer: Prop 8 is a constitutional amendment passed by voter initiative in 2008. And it says that marriage in California is the union of one man and one woman. It was a rash, or a trend of state laws, most of them constitutional amendments, I think there are 30 in the country at this point. Arizona has one, the language is almost exactly the same. And so by far the majority of states have them now.

Ted Simons: So how was then prop 8 challenged in court, and how did it get to the ninth circuit court of appeals?

Zachary Kramer: It started in the trial court and it was a very high-profile case because the lawyers, Ted Olson and David Boies, who were opponents in the 2000 election litigation, they joined forces, they had a press conference and announced they were tackling same-sex marriage. Just as back story, it's useful to know it was not the first same-sex marriage case obviously, but it was -- it received a lot of attention because who the lawyers were. So they challenged it in federal court, under federal law. And they argued it violates the due process clause of the 14th amendment, and the equal protection clause of the 14th ammeandment. The trial court ruled a few years ago a district court judge Vaughn who has retired, he wrote this broad, really expansive opinion that said there is a fundamental right for same-sex couples to get married, incredibly broad language. So that was on appeal before the ninth circuit. It was before a three-judge panel and they struck it down under the protection clause.

Ted Simons: And they struck it down with the ruling that, correct me if I'm wrong, is considered by many to be a narrow ruling.
Zachary Kramer: Yes.
Ted Simons: Talk to us about that and the implications.

Zachary Kramer: Sure. It's shockingly narrow. And it's narrow when you have to compare it to the trial court, which was incredibly broad. So the same issues were before the ninth circuit and they acknowledge what the trial court did, talking about due process and equal protection. And then they said, but there's a third argument that the plaintiffs had raised, and because it's the narrowest argument we're going to only focus on that and the idea that they're going to bite off is -- as little as they can chew. You don't have to speak to the constitution unless you have to. So they ended up ruling that California, because of its unique history with respect to same-sex marriage, has done something that no other state has done, and that's grant same-sex marriage and take it away. Prior to Prop 8, same-sex marriage was legal in California for about four to five months. In that four to five-month period, 18,000 couples registered and got licenses and married. And Prop 8 came in response to those marriages, and Prop 8 essentially said we're with drawing this right to get married, and this court said that is what is important in this case. Not the question of can a state deny same-sex marriage rights, which is a big question that everybody wants to know answer to and is hoping the Supreme Court will answer. But what the court said is, all we care about is they had a right and they've taken it away and according to the court they took it away for an improper reason.

Ted Simons: Taking it away for an improper reason. Something as narrow as that. Decidedly narrow, what does that mean regarding a Supreme Court review, which is obviously the next step, if it gets there?

Zachary Kramer: There's an intermediate step that could happen. It's possible that they could appeal it to a larger panel of the ninth circuit, which would be an 11-judge panel. And the last I checked they were still weighing their options. But because the decision is so narrow, in my mind it's not clear why the Supreme Court would want to take this case. Because right now it only applies to California. And the court is -- they are clear, they say it over and over again in an opinion we were talking about California's law, no other state, no broad right here.

Ted Simons: Could the Supreme Court go ahead and take it on those narrow grounds and then expand?

Zachary Kramer: Sure, they could. They could. I guess the question is, why would they if they don't have to? And so especially when you're dealing with a kind of divisive, contested issue, a civil rights issue, and the country is still discussing it, there's a presidential election going on, it's not clear that the court is going to want to come in at this point. They have tended in the past to let these sorts of issues play out in the states, the states develop answers to these question and come in once there's been a robust, full discussion. Arguably it's still early in the same-sex marriage opinion from the court's perspective.

Ted Simons: With all that in mind, how does this ruling and the general nature now of this particular case impact Arizona's law?

Zachary Kramer: I don't think it does at all. And that's because although the laws are almost exactly the same, Arizona never had same-sex marriage. And so if the reasoning that the court gave a stand, if anyone was to file a case in Arizona the court would say, that's all well and good, but the Perry case that you're citing isn't on point because that is unique to California.

Ted Simons: In other words, Arizona didn't take something away.

Zachary Kramer: Correct. So the court -- they kept saying over and over in their opinion that context matters. And the context is that they withdrew a right. They say they withdraw it, they eliminated it, they stripped it, but the basic idea, there was a right and now there isn't a right. Arizona hasn't done that.

Ted Simons: Last question.
Zachary Kramer: Sure.
Ted Simons: This case making news because of the decision here and we'll see where it goes, but there's also the federal defense of marriage act, that's also making its way through the courts as well.
Zachary Kramer: Yeah, that's right.
Ted Simons: Talk about that dynamic.

Zachary Kramer: So the defense of marriage act is a federal statute that essentially the same one as the California, Arizona, one man, one woman. But for purposes of federal law. And there are a variety of challenges going on across the country, challenging DOMA. There's one picking up steam in Massachusetts that looks like it's headed toward the Supreme Court. All of them are headed toward the Supreme Court. And so that litigation is a direct question, can the federal government deny same-sex couples the right to marry. Its the question the trial court in the Perry litigation in California answered, but the appellate court stayed away from. So I think that litigation, if it makes its way to the Supreme Court is going to be very hard for the court not to take it. In large part because they're going to probably be divergent opinions from various courts, but it's also a direct broad question.

Ted Simons: And as usual, it's whatever Anthony Kennedy decides will probably be the result.

Zachary Kramer: There are people it this Perry case was written for Kennedy, this outcome written opinion that we -- speaking to him, some of his -- it must be weird to be him, I don't know.
Ted Simons: Hey, fascinating stuff. Good information. Thanks for joining us.

Zachary Kramer: Thanks for having me.

Zachary Kramer:ASU Law Professor;

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