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January 21, 2018

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The Policy Racket

Legal arguments in Proposition 8 gay-marriage case could ripple in Nevada

The first case concerning gay marriage that came before Supreme Court this week was focused on the constitutionality of Proposition 8, a ballot measure to ban gay marriage in California.

But the case — or at least the arguments presented in it — may have significance for states like Nevada as well.

As the justices picked apart the litigants’ arguments, they focused intently on the role of creating legal expectations: Once a state (here, California) has afforded gay couples marriage rights, can it be constitutional to take them away?

Opponents of Proposition 8, including the federal government, say no — at least not in California. But if the Supreme Court agrees with that argument, it could present a standard under which states would find it difficult to pull back on marriage regulations, adding an extra level of finality to legal processes under way in states such as Nevada that are deciding whether to expand marriage rights.

The Nevada Legislature is considering Senate Joint Resolution 13, which would repeal language in the state constitution that defines marriage as exclusively between a man and a woman. If approved, the measure would go to voters in 2016. (If approved, voters would actually be doing the opposite of what happened in California with Prop 8 — giving gay couples the right to marry, instead of taking them away.)

The idea that rights, once afforded, cannot be rescinded might seem both logical and in keeping with the arc of history. But rights of gay marriage haven’t played out so neatly in the past few years — and justices across the political spectrum were troubled by what that argument would mean for the status of gay couples both in states that do recognize gay marriages and civil unions and those that don’t.

Justice Anthony Kennedy wondered if such a rationale meant that any state offering gay couples some rights would eventually be forced to recognize marriages as a matter of principle. “Basically that once the state goes halfway,” Kennedy said, summarizing his take on the respondents’ view, “it has to go all the way.”

Other justices worried that the flip side of that argument might let other states with less gay-friendly laws off the hook.

“So a state that has made considerable progress has to go all the way,” Justice Ruth Bader Ginsburg said, “but ... if the state has done absolutely nothing at all, then it can do as it will?”

Justices and lawyers reasoned their way through a broad range of parallels — from the history of interracial marriage to a 1923 case involving the rights of casinos to advertise in New Orleans — to make their point.

But there is no guarantee the Supreme Court will settle the issue of legal expectations when it issues its ruling in Hollingsworth v. Perry before the end of June.

Justices seemed equally if not more troubled by the basic question of whether the anti-gay marriage petitioners had the standing to bring the case before the court in the first place.

The concept of standing requires that anyone bringing a lawsuit must be directly and individually affected by the law at issue.

But pro-Prop 8 lawyer Charles Cooper argued that it wasn’t an individual injury, but an assumed responsibility on behalf of the state of California that gave him the right to bring the suit.

“The question before the court, I would submit, is not the injury to the individual proponents, it’s injury to the state,” Cooper said, arguing that lower courts agreed with him that California had abdicated its responsibility when it declined to defend the validity of Prop 8 in court.

But several justices seemed concerned by that presumption.

“These individuals are not elected by the people or appointed by the people,” Justice Sonia Sotomayor said.

The Supreme Court has never granted standing to proponents of ballot issues.

If the justices rule that Cooper’s clients did not have sufficient standing to bring the suit, it is unlikely that they will rule on any of the underlying merits of the case.

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