Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part One
	By VIKRAM DAVID AMAR
	Friday, October 23, 2009

In this column, the first in a two-part series, I analyze an important skirmish that took place last week in the federal lawsuit challenging the constitutionality of Proposition 8, California's voter-approved state constitutional ban on same-sex marriages.

United States District Court Judge Vaughn Walker rejected an attempt by Proposition 8's backers to score an early knockout punch via a so-called "summary judgment" motion that, if granted and upheld on appeal, would have ended the federal district court challenge to the state initiative.

In rejecting the defendants' summary judgment bid, Judge Walker effectively held that a trial on the merits of the case should occur -- perhaps as early as next January -- before the plaintiffs' challenge to Proposition 8 can be resolved. (Judge Walker has not yet issued a written opinion explaining his reasons for denying summary judgment to the defendants, but is expected to do so soon.)

As I discuss in more detail below and in Part II of this series, while some of the legal arguments the defendants advanced in support of their summary judgment attempt may ultimately prove correct, Judge Walker's bottom line that a trial is warranted is also appropriate.

The Plaintiffs' Challenge and the Defendants' Grounds for Their Summary Judgment Motion

I begin by briefly recapping the basis for plaintiffs' challenge. In the federal case, a set of same-sex couples, represented by the high-profile (and improbable) legal team of David Boies and Ted Olson, assert that California's ban on same-sex marriage violates the due process and equal protection clauses of the United States Constitution's Fourteenth Amendment.

In particular, the plaintiffs allege that California's unfavorable treatment of same-sex couples improperly trammels a fundamental liberty interest, is irrational, is motivated by illicit animus towards gays and lesbians and, in any event, is not supported by important enough governmental objectives to satisfy the relevant constitutional tests.

The defendants -- the backers of Proposition 8 -- deny those assertions. In addition, in their summary judgment papers, they invoke a 1972 United States Supreme Court case, Baker v. Nelson, that they argue forecloses plaintiffs' challenge, at least in the lower courts. In Baker, same-sex couples had challenged Minnesota's refusal to permit same-sex marriage on federal due process and equal protection grounds, but they lost that challenge in both the Minnesota and United States Supreme Courts.

Is Baker v. Nelson Controlling?

Plaintiffs advance three rejoinders to the contention that Baker has a controlling effect on their Proposition 8 challenge:

First, they argue that the specific claims and contentions in the present case are different from the ones raised in Baker -- even though both cases involve Fourteenth Amendment challenges to a ban on same-sex marriage -- because California's scheme is distinct from Minnesota's. For example, plaintiffs point out that, unlike Minnesota, California, even as it denies to same-sex couples the label of "marriage," provides them with the material benefits of the marital institution -- a compromise that plaintiffs contend is particularly nonsensical and thus hard to constitutionally defend.

Judge Walker appeared to embrace this argument, although I have my doubts about its soundness. It is hard for me to see that California is, or ought to be, worse off under the federal Constitution for providing more, rather than less, equality to same-sex persons than do other states.

There is also another feature of California's regime that the plaintiffs (and Judge Walker) appear to rely on to distinguish the Minnesota case: In California, voters took away an already existing state constitutional right of same-sex marriage (recognized by the California Supreme Court in May 2008), whereas in Minnesota, nothing was being taken away; same-sex marriage rights simply never existed there.

Here too, I have reservations about Judge Walker's apparent reasoning. If a state's people end up being more constrained for having conferred a right temporarily than for never having conferred it at all, then there will be a strong disincentive for states to experiment with progressive rights-creation in the first place, a result that I think would be constitutionally counterproductive (and which the Supreme Court, in similar cases, has said would make little sense).

Although I don't rule out the possibility that the fundamental constitutional questions presented in the Minnesota case are, upon close inspection, ultimately different from the ones in the Proposition 8 litigation, I am also mindful of what Judge Frank Easterbrook of the United States Court of Appeals for the Seventh Circuit recently said in a related setting: If lower courts "can disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind only judges [and parties] too dim-witted to come up with a novel argument."

The Second Counterargument: The Relevance of Intervening Supreme Court Rulings

A second argument that plaintiffs in the Proposition 8 litigation make to deflect Baker is that much has occurred in the Supreme Court's caselaw concerning the constitutional rights of same-sex persons since 1972. In particular, plaintiffs argue that more recent rulings are premised on a different constitutional analysis and recognition of the way that the Fourteenth Amendment applies to and protects gays and lesbians.

Plaintiffs are certainly right that much has changed in the areas of due process and equal protection over the last three decades (although, as a predictive matter, I still don't necessarily see five votes on the current Supreme Court to uphold federal gay marriage rights today).

But one big problem for the Proposition 8 plaintiffs is that the Supreme Court, perhaps most pointedly in a 1989 case called Rodriguez de Quijas v. Shearson/American Express, Inc., has admonished lower courts not to get out ahead of the Supreme Court by predicting (even accurately predicting) the demise of older Supreme Court rulings.

As the Rodriguez de Quijas Court put it: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the [lower courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." This principle -- directing lower courts not to "underrule" existing Supreme Court precedent. – is precisely what defendants argue constrains the district court to apply Baker v. Nelson to the Proposition 8 case.

But Does the Rodriquez de Quijas Principle Apply Here? The Third Counterargument

This brings us, then, to what turns out to be the $64,000 question: Does the Rodriguez de Quijas principle apply to the Baker v. Nelson ruling by the U.S. Supreme Court, when the Baker ruling did not take the form of a full-blown opinion rendered after full written briefing and oral argument before the Court, but instead consisted of a one-line "dismissal" of the appeal "for want of a substantial federal question?"

In other words, the Baker v. Nelson precedent was a truncated one, without the benefit of full briefing by the parties and unaccompanied by any explanation from the Justices as to why they rejected the plaintiffs' challenge to the Minnesota law in that case.

On a clean slate, one could argue that such truncated precedents -- even if they are technically rulings on the "merits" of a case (as opposed to a decision by the Supreme Court simply to decline to hear a matter by "denying a writ of certiorari") -- should have little or no binding weight.

And, indeed, at the Supreme Court level itself, the Justices feel less constrained by a summary disposition like that in Baker than they do by a case that produces a full-blown Court opinion. But, in the 1975 Hicks v. Miranda case, the Supreme Court reminded that although summary rulings by the Court carry reduced precedential weight at the Court itself, these rulings, because they are "on the merits," are fully binding on lower courts.

In other words, Hicks seems to suggest that the Rodriguez de Quijas principle (though not completely formulated until a decade letter) applies to summary rulings by the Court, as well as to rulings by the Court that generate explanatory opinions.

There is arguably some wiggle-room in the Hicks mandate -- the Court in Hicks does refer to "doctrinal developments" that might free a lower court from being bound by a Supreme Court summary disposition. But as I argue in much more detail in a forthcoming law review article, there may be less to that wiggle-room than meets the eye: The only thing that frees lower courts from an earlier summary disposition might be the Supreme Court's own decision to revisit the precise issues raised in the earlier case.

Most fundamentally, the three (largely unexplored) reasons that justify and explain the Rodriguez de Quijas rule -- a hierarchical federal court etiquette in which lower courts must rigidly respect rulings by higher courts that are "on the merits," the benefits of uniformity in the federal court system and, most crucially, the preservation of the Supreme Court's discretion about precisely when to take up contentious national legal matters -- all seem to argue in favor of applying the Rodriquez de Quijas idea even to summary dispositions.

If defendants' invocation of Baker v. Nelson will ultimately require the lower courts to reject the challenge to Proposition 8, shouldn't the case end right now? Having a trial next year, when the end result the district court must reach is foreordained, is unjustifiably wasteful, isn't it? Not necessarily, for reasons I will explore in Part II of this series.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.