As you have undoubtedly heard by now, on Tuesday the U.S. Court of Appeals for the Ninth Circuit ruled in favor of Kristin Perry, Sandra Stier, Paul Katami, and Jeffrey Zarillo, the plaintiffs challenging the constitutionality of Proposition 8.
They won. We won.
This is certainly better than losing. Without a doubt, it is better for the Ninth Circuit to rule that Proposition 8 is unconstitutional than the alternative. But from a legal standpoint, how we reach an outcome is every bit as important as the outcome that we reach – and, in determining that Proposition 8 is unconstitutional, Judge Reinhardt of the Ninth Circuit took a much more conservative approach than Judge Walker had at the district court level.
The District Court Sets The Stage
After Judge Walker’s broad and sweeping opinion, it is hard not to be disappointed by the Ninth Circuit decision – even though it might be better for us.
To understand this disappointment, we must first revisit the district court opinion. Way back in August of 2010, Judge Vaughn Walker wrote what can reasonably be interpreted as a love letter to the gays. After an extensive trial, where both proponents and opponents of same-sex marriage were given the full and fair opportunity to make their respective best cases, Judge Walker concluded that Proposition 8 “unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.” Although this opinion was rendered explicitly with regard to Proposition 8, the language and reasoning is broad enough that it one could reasonably apply to any state that seeks to prohibit same-sex marriage.
The Ninth Circuit Narrows the Scope
In contrast, Judge Reinhardt penned a much narrower opinion. Rather than considering the constitutionality of preventing same-sex marriage as a general matter, Judge Reinhardt narrows the scope of the question.
As he explains:
“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question… We need not and do not answer [that] question in this case.”
Instead, Judge Reinhardt reaches a determination based upon the specific circumstances of California –- meaning that the state “had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage.’” By narrowing the scope of the question, Judge Reinhardt crafts an opinion with limited application beyond California. No other state has granted and then revoked the marriage rights of same-sex couples. However, by narrowing the scope of the question, Judge Reinhardt also places the question squarely within the bounds of established Supreme Court precedent.
In 1996, in the case of Romer v. Evans, the Supreme Court struck down Amendment 2, an amendment to the Colorado constitution that prohibited the state and its political subdivisions from providing any protection against sexual orientation discrimination. Colorado voters passed this measure in direct response to local governments creating laws that prohibited sexual orientation discrimination.
Judge Reinhardt explains that Proposition 8 “is remarkably similar to Amendment 2.” Like Amendment 2, Proposition 8 singles out a certain class of citizens for disfavored legal status, and has the “peculiar property” of “withdrawing from homosexuals, but no others” an existing legal right. “Like Amendment 2, Proposition 8 denies ‘equal protection of the laws in the most literal sense,’ because it carves out an exception to California’s equal protection clause by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee.”
Ordinarily, the court will uphold a legislative classification as long as it bears a rational relation to some legitimate end. However, Judge Reinhardt finds that Proposition 8 was not rationally related to a legitimate purpose.
“Absent any legitimate purpose for Proposition 8, we are left with ‘the inevitable inference that the disadvantage imposed is born of animosity toward,’ or as is more likely with respect to Californians who voted for the proposition, mere disapproval of, ‘the class of persons affected.’”
Because “Proposition 8 operates with no apparent purpose but to impose upon gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships,” the Ninth Circuit finds that it is an unconstitutional violation of the Equal Protection Clause.
A Strategic Advantage?
As a practical matter, this may be the best opinion we could have hoped to receive –- not because it provides the greatest protections or takes the strongest steps toward marriage equality, but because it is a (relatively) uncontroversial ruling. The opinion fits squarely within the precedent established by Romer. Rather than suggesting that the Constitution mandates marriage equality (as Judge Walker’s opinion arguably did), the Ninth Circuit simply asserts that California’s specific approach was impermissible.
Because the ruling only applies directly to California, and because it is so firmly rooted in the language of Romer, it seems plausible that the Supreme Court might not even choose to hear the appeal. Moreover, even if the Supreme Court chooses to take the appeal, it is widely assumed that Justice Kennedy will be the deciding factor, and Justice Kennedy wrote the majority opinion in Romer.
Furthermore, some have argued that the DOMA cases coming out of Massachusetts might provide a stronger case for marriage equality, and this limited opinion might ensure that the DOMA cases are the first to reach the Supreme Court.
However, despite the fact that this opinion might offer us strategic advantages, I stand by my prior statement: it’s hard not to be disappointed. Judge Walker’s opinion provided such an incredible sense of joy, and a sense of promise that our equality is coming. Judge Reinhart’s opinion, though still sound and logical and well-written, offers only a sense that most of us must still wait.
Try not to be disappointed. The ninth circuit is known for being pretty liberal, and it’s clear that this was a calculated decision, meant to keep it out of the Supreme Court for now. If they had written a broader opinion, it would have definitely gone to SCOTUS. Even though Kennedy *might* be on our side, the odds will probably get better if we wait. Hopefully Obama will get to put another Justice on the court in the next couple years…
Off topic…but when I read the first words of the article title all I could think of was Jack Skellington singing “What does it mean, WHAT DOES IT MEAN?!”
I know it’s disappointing, but going to the Supreme Court with a broad ruling would be extremely risky. It would likely lead to a bad decision, and bad Supreme Court decisions are way worse than no decisions, because in order to get rid of them the Court has to overrule itself, and it will go pretty far to avoid doing that. Also, the Court usually follows public opinion rather than getting in front of it, and so it probably won’t rule the amendments unconstitutional until a majority of states allow same sex marriage. That’s been its pattern on other issues like interracial marriage and sodomy.
Kennedy is great with rhetoric but his opinions in Romer v. Evans and Lawrence v. Texas aren’t super helpful. They are just all we have. Romer involved a law that was much, much broader than Prop 8, so it would be easy for the Court to say that Romer does not apply. While both Romer and Lawrence have some exciting language, legally they are wishy-washy and vague. That may have been what Kennedy had to say to get a majority, but it doesn’t tell us where he stands. Plus, it’s really hard to tell where people are going to come down on this issue, so I don’t think we can assume there are four votes already and Kennedy is the only unknown.
I definitely think the DOMA cases are better to go to the Court first. It’s a much simpler issue legally. The Court can focus on the saying the feds should stay out of issues that have traditionally been left to the states (e.g., marriage and virtually all family law) and not even get into the gayness. Which would be a really good thing, given the Court we have right now.
Romer was much broader, but it does bear factual similarities as Jessica and as the 9th pointed out: not only were LGBT’s allowed to marry in the wake of In re Marriages, but the contouring of civil unions in CA over the past decade made them all but indistinguishable from the traditionally married couple on the state level — thus, the ruling by the CA Supremes that marriage itself would be allowed for same sex couples. If Prop. 8 came down to the denial of identical unions being identified as such (and hell yes it did) that gets it onto shaky ground, even if the standard is rational basis.
I hate the idea, but I agree and I don’t think it’s time to go in front of the court yet. I personally don’t even feel like I have a good idea of Kagan or Sotamayor yet, and this would be a hell of a way to find out.
I feel old and conservative and sad for saying it, but I’m OK with this ruling (for now).
I think we are on the same page but I just wanted to clarify:
I agree Romer is similar and I think the 9th Circuit was right to apply it to this case. I’m just saying that there are significant factual differences that a hostile justice could hang his or her hat on. And I’m being cranky about the fact that the equal protection argument in that case wasn’t fleshed out enough to be useful (like saying the classifications based on sexual orientation should get some level of heightened scrutiny).
Yeah we’re not disagreeing with each other. But so far as political decisions go and not getting ahead of the country, there was no way that in 1996 LGBT’s were going to get a suspect classification; that in itself is the holy grail of EP law, that’s the ball game, and so far as getting strict scrutiny, the court’s only applied it to race and alienage. Laws discriminating against women don’t get the highest level of scrutiny, they get a middling thing called intermediate scrutiny, and in 1996 conduct that was outlawed on the books of many states by statutes that hadn’t been banned by the SCOTUS wasn’t going to be the basis for either one.
I believe it was on purpose. Also, remember, the fact that Judge Walker is, himself, gay, means that whatever he has to say on the matter is taken less seriously because he has a personal dog in the fight. So the “love letter to the gays” stance would have sent this straight to SCOTUS, which, frankly, I don’t think is a good idea right now, as much as I wish it were different.
In fact, funny that this was posted this morning, because good old Maggers was on MSNBC this AM, and mom was watching with me, and she agreed with Maggie that we need to call it something else, that this is re definition of marriage and that the gays need to leave the straights alone… you know, the usual bigoted psycho babble on the subject. And my mom SHOULD have a dog in the fight, if, as she claims, she wants her children happy. But her beliefs about marriage and family and the Bible trump even her own child’s happiness. So, to me, that is evidence enough right there that well.. unfortunately, there are still people not on our side. A conservative ruling blows, we’d love it to have been a love letter, tear jerking the nation into realizing how they have wronged us for so long. However, in reality, it simply won’t happen, and SCOTUS would not want to be seen going against public opinion.
maybe we should take them up on this offer, and call it something else. we could pick any word we want! instead of marriage, we could call it Awesome.
as in, “kelly and jane got Awesomed this weekend, and they had a rainbow unicorn cake!”
or, “when are you guys going to Awesome each other?”
or, “Oh, you’re married? that’s nice. my wife and i are Awesomed. but yours is pretty cool, too.”
or, “Yeah, it’s too bad that straight people can’t Awesome each other, but we have to respect the sanctitiy of Awesome, and it’s always been One Queer and One Queer, so I think we should keep it that way.”
I absolutely agree that this was an intentionally narrow decision, based upon Judge Reinhardt’s desire to not be reversed. (I can only assume this is a common desire among judges; no one likes a public smack down).
But I disagree with your assessment that what he had to say was taken less seriously. First, because the Ninth Circuit expressly held that Judge Walker’s sexual orientation did not provide grounds for removing himself from the case (“the fact that a judge ‘could be affected by the outcome of a proceeding[,] in the same way that other members of the general public would be affected, is not a basis for recusal or disqualification”).
In less legalistic terms, though, to suggest that Judge Walker shouldn’t be allowed to make this decision, or is somehow biased in this decision, begins with an assumption that the “objective” judge is a straight white male — and everyone else has a perspective that might unreasonably color their opinions. Every judge has opinions based upon the judge’s individual experiences and these experiences do affect the judge’s opinions, but we don’t get away from this by requiring all of our judges to come from the majority.
For a more detailed explanation of this point, I’d suggest checking out Rachel’s excellent article on the subject: http://www.autostraddle.com/gay-judge-able-to-do-job-despite-gayness-93481/
(To be clear, I don’t think you were arguing the Judge Walker should have recused himself. But I think it’s helpful for all of us to have the language explaining precisely why he shouldn’t have done so, in the event someone else tries to make the claim. I just couldn’t quite work it into the structure of my original article).
@SC that is awesome(pun intended), thanks for making me smile! Can I use that next time someone makes the word argument?
@Jessica, when I wrote that reply, I was still reeling from listening to that asinine BS from my mother, but hey…at least she is trying. She has come a long way from sending me to the torture chamber known as conversion/ex gay therapy 18 years ago.
I get what you are saying, and yeah, of course Judge Walker made a sound decision, dog in the fight be damned and 9th Circuit struck down the notion that the facts lay otherwise..
and you are right. I did read Rachel’s original article, and am now bookmarking the link. It is an excellent piece of information to use when people try to suggest Judge Walker should not have been making the decision.
@Megaera Thanks! I’ll have her watch. :)
Try getting your mum to watch this:
It’s only 4 minutes, and it may give her a different perspective from a non-threatening source.
Sorry, the above post was meant to be a reply to Shannon1981.
The kind of legal analysis method employed by the panel in the careful framing the question limiting it to the issue at hand, can sometimes be used to avoid “taking a stand” and sometimes it permits real clarity, and I think that’s the case here. With legislatures and popular votes being used to discriminate, this narrow opinion permits a clearing of the fog and brings out the truth, even if some wish it were stated on broader principles. “Proposition 8 operates with no apparent purpose but to impose upon gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” The phrase “private disapproval” is the key. While some, me included, see the religious influence for the discrimination and want to fight for the wrongness of that approach to this issue, the phrase “private” disapproval reminds me that I don’t want to fight with people about their beliefs, but respect them. Religion is private. That makes America a leader for freedom. I don’t know what will happen, but this opinion is worthy of a Nobel Prize for Justice.
Yes, Reinhard’s decision was purely political…its a farce to invalidate a law against gay people on the basis of rational basis. There is totally some conceivable potential rational reason to invalidate marriage for gay people. It doesn’t make it right, but there is. Under rational basis, it doesn’t have to make very much sense.
My point is, Reinhard wasn’t applying rational basis, he was applying the standard that is used for suspect classes. The political part of the decision wasn’t only that he was tailoring it to Kennedy and his Romer decision… its that he was tailoring it to avoid treating gay people like the minority that we are. Because if the court went to bat on the issue of what level of scrutiny gay laws should get, it would change the whole game.
BREAKING – http://lgbtpov.frontiersla.com/2012/02/21/breaking-prop-8-proponents-want-full-9th-circuit-review/
@kayt – please explain/detail the “TOTALLY CONCEIVABLE POTENTIAL rational reason” that you believe would even support your argument that prop 8 could survive rational basis. i’m intrigued.
“Simply stating what has always been does not address the reasons for it. The mere fact that prior law, history, tradition, the dictionary and the Bible have defined a term does not give that definition a rational basis, it merely states what has been. Tradition, standing alone, does not provide a rational basis for the law.” Judge Jeffrey White, Federal District Court for the District of Northern California, Golinski v. OPM
“There is no worse reason to justify something by saying it has always been done this way.” Justice Holmes
Now if only the Supreme Court would sign off on one of these fantastic lower court opinions :-)
I’m especially excited about the fact that Judge White opted for heightened scrutiny. Most judges seem to be deciding that sexual orientation could be a protected class based upon the characteristics of protected classes, but then deciding not to decide that. I haven’t thought through the full legal implications yet…but as a gut reaction, it’s nice to see a judge agreeing that we should get extra protections.