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What the Prop 8 Ruling Means

I’ve now had more of a chance to read the full ruling from the 9th Circuit Court of Appeals that upheld the lower court ruling overturning California’s Prop 8, as have many legal scholars. The consensus seems to be that Judge Reinhardt made the ruling deliberately very narrow in order to prevent it from being overturned by the Supreme Court — and particularly in order to woo Justice Kennedy’s support if they do grant cert. Here’s Orin Kerr:

Based on a quick skim, Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

I think that’s exactly right. So does Lyle Denniston:

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court. However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

But he also points out something very interesting. The fact that Prop 8 denied the title of marriage to gay couples but still allowed all of the rights of marriage under a different name clearly undermined the rational basis for the law:

In Judge Reinhardt’s explicit effort to keep the decision narrow, the majority opinion stressed that same-sex couples had all of the legal rights as opposite-sex couples – before Proposition 8 was enacted. Thus, it concluded, the ballot measure “had one effect only” — that is, “it stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.”

As a result, Reinhardt wrote, the ballot measure “could not have been enacted to advance California’s interests in child rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.”

This is an important point. It was essentially impossible for those arguing in favor of the law’s constitutionality to come up with a rational basis for the law because, even if you grant all those absurd arguments about undermining the family, the fact that none of those things would actually change by implementing Prop 8, only the name of the union would change, undermines the validity of that argument.

Comments

  1. walton says

    I think it’s noteworthy that the majority opinion relied so heavily on Romer. They laid emphasis on the fact that Proposition 8 represented the selective deprivation of a pre-existing right, since same-sex couples had the right to marry in California before Proposition 8 was enacted. The Court applied the principle, laid down in Romer, that the Equal Protection Clause of the Fourteenth Amendment prevents minority groups from being targeted for the deprivation of a pre-existing right without a legitimate reason. (And, on the facts, they found that there was no such legitimate reason.) So this doesn’t necessarily mean that there is a universal constitutional right to same-sex marriage. It just means that the state can’t single out a minority group – in this case, gay and lesbian people – and deprive them of a pre-existing right, unless it has a legitimate reason for doing so.

    On these facts, they found – correctly, I think – that California had no legitimate reason for depriving same-sex couples of the right to marry. They particularly emphasized the fact that the only effect of Proposition 8 was to deny same-sex couples the right to use the term “marriage”; it didn’t prevent them from entering into registered domestic partnerships, adopting children, or exercising the other substantive legal rights of married couples. The fact that Proposition 8 didn’t make any difference to any substantive legal rights other than the right to use the term “marriage”, though, did not mean that its effects were trivial. The Court explicitly recognized the cultural importance of the term “marriage”, and found that marriage is “the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.” To take the label of “marriage” away from same-sex couples and to force them to use the term “registered domestic partnership” instead, therefore, deprived them of an important symbol of “state legitimization and societal recognition of their committed relationships”.

    As such, they rejected the arguments of the defendants and amici curiae that Proposition 8 served the purpose of “furthering California’s interest in childrearing and responsible procreation”, in “protecting religious liberty”, or in “preventing children being taught about same-sex marriage in schools”, since Proposition 8 didn’t actually do anything to advance any of those objectives; it had absolutely no effect on the laws governing parenting and adoption, religious freedom, or the school curriculum. All it did was to deny same-sex couples the right to use the term “marriage”. (This doesn’t imply that the Court would have considered those to be legitimate justifications for taking rights away from gay and lesbian people; rather, they simply held those justifications to be irrelevant on the facts of the case.) They found, instead, that the only reason for the enactment of Proposition 8 was “disapproval” of “gays and lesbians as a class”, and that the Equal Protection Clause does not allow a group to be singled out for deprivation of rights based purely on disapproval of that group, without any other reason.

    Considering that Kennedy wrote the majority opinion of the Supreme Court in Romer, I think he’s extremely unlikely to change his mind now if Perry reaches the Supreme Court. Scalia, of course, dissented in Romer – in fact, I was just reading his dissent; it’s one of the most vitriolic and nasty judicial opinions I’ve ever seen – and would likely do so again if the Supreme Court affirms the decision in Perry.

  2. d cwilson says

    It was essentially impossible for those arguing in favor of the law’s constitutionality to come up with a rational basis for the law

    There is no rational basis for opposing same-sex marriage, no matter how much smoke they blow about “protecting marriage”. All of the opposition is based purely on emotion. Not that they’ll ever admit it.

  3. The Lorax says

    Hah. Wow.

    We need more judges like that.

    That is weapons-grade judicial judo right there.

    Purely speculation, but I’ll bet he knew that he was going to catch some flak from liberals for such a narrow ruling, but knowing that, he did it anyway. He elected for the small victory over the big one, knowing that the big one would be basically guaranteed when it hit the Supreme Court.

    With a grin, he moved his pawn forward. Checkmate in two moves.

    At any rate, I hope it pays off.

  4. Rieux says

    Missed a link in my earlier (and as yet waiting-for-moderation due to its four active links) comment: “moi” should link to this post from Ophelia Benson’s “Butterflies and Wheels.”

  5. jeevmon says

    I wouldn’t rely too much on the requirement of a rational basis. Justice Scalia would find that the desire to enforce traditional norms condemning homosexuality is a sufficient rational basis for laws restricting gay rights.

  6. JustaTech says

    A question to the legal scholars: Washington state is getting ready to pass a law allowing gay marriage (I think it’s being signed today). Opponents have promised to challange it by referendum on the November ballot, and if they do have the signatures to get the referendum the law won’t go into affect until after the election.

    My question is: based on this ruling could the referendum be denied because the law was passed by the legislature, or would this only apply if the law had been in affect before the referendum was submitted?

  7. tomh says

    My question is: based on this ruling could the referendum be denied because the law was passed by the legislature, or would this only apply if the law had been in affect before the referendum was submitted?

    I don’t think there is an answer. That’s what happened in Maine, where a law allowing gay marriage was passed in 2009, signed by the governor, but was repealed by a referendum before it went into effect. This makes it a little different than the California situation and I think it would have to go to court to resolve it. Like California, Maine has another vote on marriage equality in November of this year. Of course, so far, no state has approved gay marriage by a popular vote.

  8. Rieux says

    JustaTech:

    That’s not so clear. Presuming (which I hope turns out not to be true) Washingtonites vote to prevent the marriage-equality statute from going into effect—just as Maine’s voters did in a similar proceeding in 2009, alas—it’s a debatable point whether the factual difference between those states’ situation and California’s (i.e., GLB Californians were actually allowed to get married there before the right was taken away) would make a difference within the Perry panel majority’s analysis. Presumably pro-gay forces in Washington would argue that there’s no meaningful difference between the cases, while anti-gay forces would argue that there is a meaningful difference.

    It really boils down to whether a judge agrees that GLB Washingtonites have had something material “taken away from,” as opposed to “denied to,” them. If the former, the anti-gay Washington movement is doomed, at least at the federal district-court level. (Then, hopefully a different Ninth Circuit panel wouldn’t abandon the holding of Perry.)

    If a Washington federal district court concluded that the Washington ballot measure only denied gay marriage rather than took it away, that would simply render Perry irrelevant. The Washington court could then proceed to reach the more fundamental legal issue—i.e., the constitutionality of bans on same-sex marriage—that the Perry Ninth Circuit panel majority avoided.

    All of the above applies to Maine, too—except that Maine is not in the Ninth Circuit, which means that that circuit’s decision on Tuesday is not binding there. I have no idea how Maine’s courts or the First Circuit would handle the issues decided in Perry by the Northern District of California and Ninth Circuit.

  9. whheydt says

    One factor I haven’t seen mentioned… When the anti-SSM folks defended Prop. 8 at the California Supreme Court, they did NOT try to eliminate the estimated 18,000 same-sex marriages that took place between the time the original ruling went into effect and Prop. 8 passed. Indeed, they announced ahead of time that they weren’t going to try to get those marriages invalidated (which was done to such marriages performed before the SSM went into the state courts in the first place).

    I think that was a rather major “foot gun” round against their arguments in the Federal Appeals Court.

    It’s also worth noting that the anti-SSM folks asked the California State Supreme Court to delay putting the ruling permitting SSM into effect until after the election where Prop. 8 passed. Had the court done as they asked, this ruling would not have been able to be made on the basis of taking away rights already granted.

    –W. H. Heydt

    Old Used Programmer

  10. Michael Heath says

    Given the narrowness of the ruling, I think the SCOTUS will deny cert. What’s the point? Especially given that J. Kennedy wrote the majority opinion in Romer.

  11. Subtract Hominem says

    tomh@7

    That’s what happened in Maine, where a law allowing gay marriage was passed in 2009, signed by the governor, but was repealed by a referendum before it went into effect

    Technically, Maine may be a slightly different case, since it was not repealed by a referendum calling for a new law banning SSM, but by a “citizens’ veto” which nullified its initial passage.

    (I am no lawyer, but I was living in Maine at the time.)

  12. walton says

    Justice Scalia would find that the desire to enforce traditional norms condemning homosexuality is a sufficient rational basis for laws restricting gay rights.

    That’s pretty much exactly what he did say in his dissent in Romer, FWIW.

  13. cptdoom says

    Although, as a gay man, I am pleased that this ruling was written in a way to basically ensure it is held up by the SC, I am concerned because it implies that rights can be granted by courts or the legislature. In reality rights are inalienable and those of us who are gay or lesbian have been denied basic rights for the entire history of the US.

    I also wonder how gender discrimination plays into this argument. If the 14th Amendment ensures laws have to treat men and women equally, as we were assured when the ERA was shot down as unecessary and has Justice Ginsberg was able to effectively argue in her cases before the Court, how can my choice of marital partner be limited by my gender?

  14. exdrone says

    Wait, didn’t Judge Reinhold play in Beverly Hills Cop and Fast Times at Ridgemont High back in the 1980s? It’s good to see that he’s still getting parts.

  15. bobcarroll says

    eptdoom: at last someone has mentioned the idea kicking around in my head during this discussion, something I bet was condidered by our exceptionally tricky judge. Governments don’t grant rights, they recognize them(or not.) Before Loving, people had the right to marry heterosexually any adult they wished to, regardles of those awful state laws. Here we have what seems to be a directly analogous situation. The right clearly exists, as it always has, whether people thought about it or not. Otherwise we are presented by at least two classes of rights, which seems to be antithetical to the constitution. Skipping a bit, it seems that once this ruling stands, the greater implications are unavoidable. IANAL, obviously.

  16. bobcarroll says

    Alareth: the ninth circuit ain’t the only ones: Santo’s a bigot, period. Checking on the article referred to above, it seems that some midwestern lawmakers are proposing legislation to provide personhood protection even earlier in the develolpmental process, namely to sperm cells. Shades of Monty Python!(Well there goes the second best indoor sport!)
    Apparently semi-awareness of basic biology (or possibly misogeny) has prevented the solons from granting the same status to ova.

  17. pyrobryan says

    I don’t understand how a question of individual rights can be left up to a popular vote. Isn’t that exactly what our country was designed to protect against, the majority deciding the rights of the minority?

  18. John Hinkle says

    pyrobryan says:

    I don’t understand how a question of individual rights can be left up to a popular vote. Isn’t that exactly what our country was designed to protect against, the majority deciding the rights of the minority?

    Along those lines,

    walton says:

    Justice Scalia would find that the desire to enforce traditional norms condemning homosexuality is a sufficient rational basis for laws restricting gay rights.

    That’s pretty much exactly what he did say in his dissent in Romer, FWIW.

    And who defines those traditional norms? The majority?

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