Should Summary Judgment Have Been Granted in the Federal Proposition 8 Suit? Part Two
	By VIKRAM DAVID AMAR
	Friday, November 6, 2009

In my last column, Part One in this series, I discussed some recent developments in the federal court litigation over the legality of California's Proposition 8. That initiative measure, adopted by state voters last fall, amended the California constitution to ban recognition of same-sex marriage in the state. Opponents of Proposition 8 filed suit in federal district court this spring alleging that the provision violates the due process and equal protection clauses of the United States Constitution.

A few weeks ago, as I reported in Part One, Judge Vaughn Walker denied a motion brought by the defendants – the backers of the Proposition -- for summary judgment. Had the defendants' motion been successful (and been upheld on appeal), the federal case against Proposition 8 would have ended. Instead, it is going forward.

In this column, I'll continue my explanation of the defendants' contentions, and elaborate my arguments for why the judge's decision to proceed with the case was at least plausible.

What the Defendants Argued

One of the defendants' arguments in their summary judgment motion was that a United States Supreme Court decision from 1972 – Baker v. Nelson – binds lower courts and effectively prevents those courts from ruling that a ban on same-sex marriage runs afoul of due process or equal protection. The argument that Baker is binding Supreme Court precedent, from which lower courts cannot depart, is at first blush a bit counterintuitive, because Baker was not a fully-briefed and fully-explained Supreme Court case, but rather a one-line dismissal arising from a Minnesota Supreme Court appeal that had rejected a challenge to that state's ban on gay marriage. (We call such a dismissal -- for want of a "substantial federal question," to use the Court's parlance -- a summary Court ruling.)

Nonetheless, as I explained in Part One, technically, the Baker ruling was "on the merits," meaning that the Court is assumed to have considered the core arguments about who was right and wrong in their view of the Constitution; the Justices did not rest their ruling in Baker on procedural or technical grounds that would bar the Court from resolving the dispute. And thus, there is a good argument that Baker does indeed constrain the lower courts' ability to embrace plaintiffs' claims in the Proposition 8 litigation.

Of course, to the extent that the plaintiffs in the Proposition 8 case assert some claims that go beyond the claims made in Baker, Baker would foreclose only some – rather than all – of plaintiffs' challenges. But, at a minimum, Baker, properly read, might have a significant dampening effect on plaintiffs' chances of winning, by knocking out at least some, and perhaps all, of their key arguments.

Nonetheless, I suggested in Part One that Judge Walker might have done the right thing by ordering a trial to be held – to begin in January -- that will develop all the facts and legal principles that bear on the same-sex marriage controversy. But, readers may ask, why is a trial a good idea if Baker is likely to ultimately destroy many or perhaps all of plaintiffs' claims? If, at the end of the day, the district court will be compelled to rule for defendants on the basis of the binding precedent of Baker, why might a trial still be warranted?

The Narrow Explanation for Why, Despite Baker, a Trial May Still Be a Good Idea: Minnesota's Law Versus California's Law

There are two possible answers to this question – one narrow, and one broader. The narrow answer goes as follows: Let's take as granted that Baker will end up foreclosing some of plaintiffs' claims – namely, the argument that the due process clause of the Fourteenth Amendment protects the liberty of gays and lesbians to marry and the notion that discrimination against gays and lesbians is the marital setting is inherently irrational and violative of equal protection principles. Even so, there may be some unique aspects of California's scheme that distinguish it from Minnesota's statute -- which was the law at issue in Baker -- such that a trial is needed to assess the permissibility of California's particular ban.

For example, the plaintiffs in the present litigation contend that California's law is uniquely nonsensical because, unlike Minnesota, California denies to same-sex couples the label "marriage," but does not deny to same-sex couples the tangible benefits that accompany marriage. Thus, plaintiffs argue, even California itself does not appear to believe there is a strong basis for treating same-sex couples differently. To assess California's unusual law that extends some, but not all, of the trappings of marriage to same-sex couples, a trial may be necessary -- to examine the particulars of California's asserted interests, and the ways in which the state's scheme does, or does not, meaningfully further those interests.

As I wrote in Part One, in the end, I think it will be hard to invalidate the California law on the distinct ground that California confers too many benefits to same-sex couples to stop short of true equality. To see the point clearly, let's assume that we truly internalize the proposition for which Baker seems to stand (and that Baker requires lower courts to accept): that it would not be constitutionally irrational or problematic for California to deny all benefits to same-sex couples while giving those benefits to opposite-sex couples. Taking that as a given, it would be hard for me to believe that California could not rationally decide to preserve the label of "marriage" alone, for the sake of tradition. (Note here that I am not saying that tradition is a particularly strong argument – just that it is an argument that meets the minimal standard of rationality, which is the applicable test if one accepts Baker's rejection of plaintiffs' claims there.)

But perhaps -- just perhaps -- a trial would help resolve this California-specific question, and so Judge Walker's ruling could be justified on that ground.

The Broader Explanation for Why, Despite Baker, a Trial May Still Be a Good Idea: The Lower Federal Courts' Special Role In Setting Up Issues for the Court

Many readers may feel that a trial is unnecessary to examine the narrow question of the constitutionality of California's unusual regime. Even if that is true, I think there is a broader reason -- independent of the narrow one -- why Judge Walker's decision to have a trial next year in the case might be defensible.

This broader reason has to do with the special role lower courts play in facilitating and "teeing up" important legal questions for subsequent Supreme Court review. In particular, lower court development of the facts and legal theories surrounding the gay marriage issue is necessary to assist the Supreme Court in deciding whether and when it might want to reconsider its summary resolution of the issue in Baker.

Everyone agrees that even if the lower federal courts are bound by Baker, the Supreme Court is free to reconsider it. (Indeed, if and when the Court does revisit that precedent, the ordinary rules of stare decisis that bear on the Court's disinclination to overrule past decisions do not apply when the earlier ruling -- in this case, Baker -- was not the product of full briefing and argument and did not result in a full-blown opinion.) But if the Supreme Court is ever to know whether the time to reconsider Baker is ripe, it needs the lower courts to help it work through the ways in which the facts and legal landscape have evolved since the time Baker was decided.

One member of the U.S. Supreme Court, the late Justice William Brennan, had unsuccessfully argued against binding the lower courts to follow summary Court decisions like Baker (that is, those without full briefing and an explanatory opinion). And Justice Brennan did so precisely because he worried that if lower courts were bound by summary Court rulings, then the evolution of constitutional principles would be stunted insofar as lower courts would not be permitted to provide the Supreme Court the raw materials it might need to reconsider archaic rulings from the past.

As Justice Brennan phrased his worry: "There is reason for concern that [binding lower courts to summary Supreme Court rulings] will impair [the Supreme] Court's ability – indeed responsibility – to adjudicate important constitutional issues. . . . [After a summary Court ruling] no court will again consider the merits of the question presented to this Court [which will in turn make it hard for] issues to be presented to this Court in future cases with a fully developed record addressed to the merits of the specific case. This effect seriously diminishes our ability to reconsider issues previously disposed of summarily."

Justice Brennan was right about the need for the Supreme Court to have fully-developed records so that it can decide when and how reconsideration of older decisions is warranted. But he was wrong that lower courts are necessarily prevented from developing such records just because they are bound by earlier summary rulings.

That is because being bound by the earlier ruling means only that a lower court ultimately must rule in one direction; it does not mean that the lower court cannot consider and explain how it would have ruled had it not been bound in the first place. And to undertake that consideration and discussion, it may need to gather evidence and hold a trial.

Shouldn't the Question Whether Baker is Dispositive Precede Other Questions?

But shouldn't a lower court necessarily first decide whether one party's claims are foreclosed by precedent, before holding a trial to determine how the case would be resolved in the absence of that precedent?

Not necessarily. The instinct to say "Yes" here may arise from the idea that procedural arguments should be resolved before substantive ones, combined with the erroneous belief that an argument about precedent is a procedural argument.

But no such sequence is mandated. Procedural matters are not always resolved before substantive ones. And, in any event, an argument about precedent is an argument on the merits – as are, for example, a ruling against a party because it lacks compelling evidence, or a ruling against the party because its legal theory is flawed even on a clean slate.

Importantly, a lower court is not generally directed to consider specific arguments about the merits of the case (or procedural questions, for that matter) in any particular order. Instead, the sequencing of the consideration of issues is ordinarily left to the sound discretion of the lower court.

To be sure, there are some so-called "threshold" issues – such as whether a plaintiff has constitutional "standing," or whether the case presents a "political question" inappropriate for judicial resolution – that courts regularly (although not invariably) decide before taking up other aspects of the case. But once we leave so-called "threshold" issues, the system generally, as the Supreme Court observed in its recent decision in Pearson v. Callahan, "decline[s] to mandate the order of decision that lower courts must follow."

Allowing this discretion on the part of lower courts makes sense: One could easily imagine a case in which resolving a claim on some other ground, without ever considering the binding force of an earlier summary Supreme Court ruling, would be efficient and wise. Such a situation might occur, for instance, if determining the scope and meaning of the summary Court ruling were itself (as it might be in Baker) a somewhat tedious or difficult task.

And even if deciding the effect of binding higher Court precedent at the outset were in a given case more efficient than proceeding to the case's other substantive issues, there are other factors that might outweigh this efficiency, including the need, discussed above, to facilitate the development of constitutional doctrine.

The Analogy to the Law Regarding Qualified Immunity: Ordering Merits Questions In Such a Way as to Further Develop Constitutional Doctrine

This point is illustrated nicely in the setting of so-called "qualified immunity" discussed in Callahan. Qualified immunity is a doctrine that allows a government official who is sued for constitutional wrongdoing to avoid liability on the ground that, even if what he did violated the Constitution, the constitutional law itself was not settled enough at the time he acted to justify holding him accountable for the violation.

There are plenty of instances in which deciding whether the constitutional law was well-settled at the time the defendant acted is easier than deciding the question of whether the defendant violated the Constitution in the first place. But ordinarily (and until recently, by mandate and without exception), lower courts decide first whether a constitutional violation took place, and only then take up whether the defendant should be excused because the law at the time of the alleged violation was not well-settled. And this sequence is used even though the primary purpose of qualified immunity is to keep governmental defendants from having to spend very much time litigating in court.

Why is this (seemingly inefficient) sequence preferred in the qualified immunity setting? Because, as the Callahan Court explained, the "Constitution's elaboration from case to case" – that is, the evolution in constitutional doctrine – requires that lower courts interpret the Constitution and give guidance on its meaning.

Sometimes, in other words, efficiency is sacrificed to encourage "federal courts to decide unclear legal questions in order to clarify the law for the future." This interest in facilitating growth and clarity in constitutional doctrine is very closely analogous to the interest in facilitating Supreme Court reconsideration of older summary rulings like Baker. Both interests implicate important matters that, as the Callahan Court put it, "involve[e] internal Judicial branch operations."

None of this is to say that conducting a trial when binding higher Court precedent dictates the ultimate outcome of a case is always appropriate. Trials are expensive and time-consuming, and therefore some special oversight of district court discretion to hold trials may be warranted. Also, if the Supreme Court already has a recently-developed factual and legal record with respect to a nationally recurring issue, then repeated extensive litigation in the lower courts on that issue may seem particularly wasteful. But that is not the case with gay marriage, which has not for decades reached the Supreme Court in a case with a fully-developed record.

In the end, given where things are at in 2009-2010, I am not yet ready to say that Judge Walker's decision to hold a trial is indefensible. Indeed, that decision may be appropriate even if the trial's only purpose ends up being the development of the kind of record the Supreme Court will need in the coming years to decide if and when it wants to take a same-sex marriage case. And that is true even if the rightful winner of the trial can be predicted somewhat readily, based on the Baker precedent, even now.

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.