Same-Sex Marriage Opinion

The Ninth Circuit’s decision invalidating Proposition 8, which overruled the California Supreme Court’s holding that the state could not prohibit same-sex marriage, is here.  I am unpersuaded by the majority’s analysis.

My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional.  But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.

This line of reasoning, if you take it seriously, is dangerous.  First, it basically says that people have a vested right in a State Supreme Court’s interpretation of its constitution. Really?  I wonder what the Ninth Circuit would have said if the California Supreme Court had simply reversed itself –is stare decisis now constitutionally mandated in some cases? Second, the only mechanism for people to express their disapproval for a state supreme court opinion that they dislike will be to recall, impeach, or not retain the judges, as was done in Iowa after that state’s same-sex marriage decision.  I submit that we are better off with a system where some states use referenda to repeal unpopular decisions (even ones you like) than having all states eject judges when the voters don’t like one of their many decisions. Third, the Court’s analysis would render many state referenda constitutionally suspect (at least those that were done in response to a court decision). Finally, how would this analysis apply to the Federal Constitution?  Are “We The People” prohibiting from amending the Constitution to overrule Citizens United because that would take away a First Amendment right from corporations that they are now happily exercising?

Of course, I don’t take the panel’s reasoning seriously.  Neither will the en banc Court, I think.  Whether they will bite the bullet and just say that a prohibition on same-sex marriage is invalid–pure and simple–is another question.

UPDATE:  I hasten to add that President Obama still officially holds the view described by the Ninth Circuit as irrational.

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27 Responses

  1. Joe says:

    No, it means that if a state targets a specific group by taking away its rights, at least by special legislation requiring a harder burden to remove (see Hunter v. Erickson), it has to have a valid reason to do so.

    A court changing its mind doesn’t do that. The right in effect isn’t there. It isn’t taken away by the state.

    Second, referenda are allowed if they have a valid purpose. If CA didn’t like a ruling protecting the equal rights of blacks, would an illicit referenda be okay as a way to “express disapproval”? They also could have protected the purported state purposes in a way that burdened more than same sex couples, of course, but that would ruin it.

    What state referenda in particular are suspect?

    Finally, what? The ruling was based on the current Constitution. State constitutions are bound by it. If we amend the Constitution, and following the rules if the Senate is affected, it can’t be unconstitutional under the unamended Constitution!

    I don’t take the dissent seriously. It spends a tiny amount of time doing what it actually has to do — explain how “responsible procreation” or whatever is furthered by Prop 8, when domestic partnerships provide all the tangible rights of a state marriage. As it admits, in a place like Nebraska, where marriage-like same sex unions are also denied, it makes more sense.

    Romer led to Lawrence, so yes, eventually SSM will be protected just like Loving was bound to happen when interracial fornication could not be treated differently. But, Prop 8 is particularly wrong.

  2. Gerard Magliocca says:

    They did have a valid reason. They didn’t like the Supreme Court decision. The logic of the panel is that if the CA Supreme Court had upheld the ban on same-sex marriage, then that would be OK. Is that what you think? I sure don’t.

    In effect, my problem is that they should say that Romer only makes sense as an exercise of intermediate scrutiny (the fact Romer it says it applied rational basis review is dicta or, more accurately, a lie.) And under heightened scrutiny, the ban on same-sex marriage would fail. Wrapping yourself into a pretzel to say that what about half of the country believes is constitutionally irrational creates all sorts of problems–political and legal.

  3. Joe says:

    They do not get to pass anything they want to show disfavor of the CASC decision or again they could pass racially discriminatory laws. Rational basis doesn’t fall on numbers, or widely held prejudice would be enough. Half the country doesn’t have the CA structure of strict scrutiny for sexual orientation but a gratuitous badge of discrimination either.

    Reinhardt can’t be totally honest since the USSC is not but if pressed, sure, it should say ala O’Connor in Lawrence, “When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.”

    Lower courts can’t say the USSC is “lying.” Your focus there should be Kennedy.

  4. Logan Roise says:

    Agree completely. I was surprised when the decision actually stated you can’t take away rights already granted but it’s okay to deny them in the first place. I’m reminded of a Learned Hand quote…

    “And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not the freedom to do as one likes. This is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow.”

  5. Gerard Magliocca says:

    Well, I don’t have a focus–I’m just evaluating the arguments in the opinion. If Judge Reinhardt wants to write an amicus brief for the Supreme Court (as Orin Kerr aptly put it), then he should resign and do that.

  6. Joe says:

    I respectfully disagree with your evaluation and his analysis was set forth beforehand, including in a constitutional law professor brief, as a possible path.

    As to #4, cf.

  7. Gfd says:

    Completely agree with Joe here.

    Gerard: Isn’t your problem with Romer, not with this decision? I’m somewhat surprised by all the freak-out about the 9th Circuit opinion (here, at Balkinization, and Volokh) that essentially is paraphrasing the argument Justice Scalia made in the dissent in Romer, which is very interesting, but after all, is the dissent, not the majority. Your obvious problem is with Romer (which involved a right of private employment non-discrimination that everyone agrees is certainly not constitutionally mandated).

    And if you have no way of distinguishing Romer from this case (which I don’t think you do, since you make no effort to distinguish it), how can you criticize the 9th Circuit for following it when it issued its opinion yesterday?

  8. Joe says:

    A correction as to Nebraska. Nebraska passed a measure banning certain marriage-like unions. I found it notable at the time & this arises in some other cases because of its possible breadth. That is, not only same sex couples are affected. Justice Jackson noted the charm of EP is in part that it equally burdens, so people are more careful. No fan of the NE approach but it shows that you can “protect marriage” by not simply targeting same sex couples.

  9. Joe says:

    I’m sorry. The NE measure:

    “Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.”

    The reach does make it different as noted even by the dissent in the Prop 8 case.

  10. Goggins says:

    Likewise: Was the Thirteenth Amendment unconstitutional? The Supreme Court had already held that black Americans were property, not citizens, and could not be otherwise. Abolition of slavery was motivated in part by hostility toward a disfavored class of citizens: slaveowners.

  11. Gerard Magliocca says:

    The problem, in essence, is that Romer is not a rational basis decision. Now you could look at that in a couple of ways. One is that a lower court should apply the actual rational basis standard and uphold Prop 8. Another is to say that Romer really stands for heightened scrutiny and strike down Prop 8. The third option (continuing to pretend that Romer is a rational basis case) doesn’t make sense. Precedent should be followed, but not if it’s totally incoherent.

  12. Gfd says:

    “Precedent should be followed, but not if it’s totally incoherent.”

    Jeez, is that what you actually think? Well, I think it is totally incoherent to say that restricting the use of millions of dollars of corporate or union funds to support or oppose particular candidates is a violation of the First Amendment. But guess what? My opinion of whether it is incoherent doesn’t matter, because the Supreme Court has already closed the door on that question, and if I was a federal district or circuit judge, I’d be bound to follow that incoherent (in my opinion) decision.

    Either distinguish Romer, or say it should be overruled. But to say precedent should be followed by lower courts, except when you decide it is incoherent, is to say precedent never need be followed at all.

  13. Gerard Magliocca says:

    Which part of Romer do you want to follow? The part that says that rational basis is the standard or the part that actually applies heightened scrutiny. I am in favor of following one of them, but you can’t follow both. It’s illogical.

  14. AF says:

    “Which part of Romer do you want to follow? The part that says that rational basis is the standard or the part that actually applies heightened scrutiny. I am in favor of following one of them, but you can’t follow both.”

    I would argue that the Reinhardt opinion does follow both.

    And by the way, what’s so illogical about a rational basis standard with teeth? There is no Platonic essence of a rational basis test. It is a judge-made construct. Cases like Moreno, City of Cleburne, and Romer are leading cases interpreting the rational basis standard. It’s hard to see why people continue to insist that the rational basis standard is incompatible with overturning laws that are designed to disadvantage unpopular groups.

  15. Gerard Magliocca says:

    The problem with those cases is that they are very difficult to apply in a consistent way. Now, if your point is, “Well, but they’re still there and you have to do your best to understand them,” that’s fair enough. But the more obvious applicable case is Loving v. Virginia, if we’re talking about following precedent. But Justice Kennedy didn’t write that one.

  16. AF says:

    The Moreno/Cleburne/Romer trilogy may be difficult to apply, but they’re not that difficult to understand. They make it pretty clear that the rational basis standard is less deferential when it comes to laws that seem designed to harm a politically unpopular group — specifically including gays.

    As for Loving, the problem isn’t just that Kennedy didn’t write it; it’s that it applied strict scrutiny and the Supreme Court has never applied strict scrutiny to gay rights before. So it’s more faithful to existing doctrine to try to fit this case within the Romer framework. You could make a pretty good argument that if Loving is going to be applied to gay marriage, it’s the Supreme Court rather than a lower court that should do it.

  17. Gfd says:

    Gerard: I see where your coming from on the substantive issue of whether rational-basis-plus is clear enough (it’s a critique I’ve heard from many legal academics), but I’d echo what AF said on that issue.

    But my larger point (which I think you appear to have conceded a bit) is that you don’t get to decide which U.S. Supreme Court cases you can follow based on your own subjective evaluation of their coherence. That’s why I think your criticism (that has been echoed by several other con. law blogs) of the 9th Circuit isn’t valid, because it is just rehashing the dissent’s argument in Romer.

  18. Gfd says:

    Ack…*you’re coming from

  19. Gerard Magliocca says:

    Well, I don’t think that the Ninth Circuit’s decision does follow from Romer, actually (though you can plausibly say that it does).

    Perhaps I’m unduly influenced by the fact that Reinhardt wrote the opinion.

  20. Gfd says:

    So I’ll ask you (for, by my count, the third time now): how do you distinguish Romer?

  21. Joe says:

    What is with the update? I usually find GM reasonable, but this is really petty. President Obama opposed Prop 8. He does not yet support SSM, but can you cite where he wants to take SSM rights away ala CA that are already there?

  22. Gerard Magliocca says:

    Well, Romer rested partly on the idea that Proposition 2 was unprecedented in its breadth targeting a specific group. Proposition 8 is not unprecedented and focuses on a single issue. Next, Romer inflicted many disabilities on gays and lesbians. Proposition 8 does far less than that. Third, Lawrence said that you can distinguish between sanctioning a relationship and penalizing that status. (Scalia said that was wrong, but we’re just going with what the Court said, in line with what some of the prior comments insist upon.) Fourth, there is a huge national debate ongoing about same-sex marriage–no such debate was going on about Proposition 2.

    Now you can read Romer more broadly. (For example, I think it’s really is about applying heightened scrutiny to gays and lesbians rather than the particulars of Proposition 2. Nobody thinks now that Brown was limited to education, but at a certain point you could have made that argument.) The point is that you cannot say that Romer controls the same-sex marriage case.

  23. Joe says:

    Marty Lederman over at Balkanization has a good post on Prop 8 & Romer, noting Reinhardt lists similarities and differences.

  24. Gerard Magliocca says:

    As Jason Mazzone points out over on Balkinization, voters in Washington who want a referendum on same-sex marriage to overturn the legislation legalizing it may not be able to do so now. (Unless you think that SSM legislation can be constitutionally repealed, but a State Supreme Court decision granting that right cannot. That seems odd, but then again the whole thing is odd.)

    I like the result. The process is dreadful.

  25. Asher says:

    Is this comment thread some sort of twisted joke? How do you distinguish Romer? You say there are rational bases for Proposition 8 but there weren’t for Amendment 2. Simple enough. I don’t think anyone mistakes what Reinhardt did for good-faith rational basis review.

  26. Joe says:

    the “dreadful” process part. As to the other part, I realize some don’t take him seriously, but the opinion really doesn’t block any type of referendum. It might be time to move on. Like the Walker ruling, this is likely not the last word. No matter how confused some people are about the whole thing.