9th Circuit Court Rules That California’s Proposition 8 Is Unconstitutional on narrow grounds that won’t apply outside California

[I know Myca also posted about this, but I think my post provides some additional information, justifying the overlap. --Amp]

You can read the ruling (in pdf form) here.

On a first glance, I think there’s an aspect to this ruling a lot of people will misunderstand. People such as constitutional law scholar John Eastman, the chairman of NOM, who blustered that “Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution.”

But the court did not find “a right to gay marriage under the US Constitution.” The decision is very explicit on this point, and as a law professor Eastman must know that what he’s saying isn’t true. From the decision (written by Judge Stephen Reinhardt):

We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.

NOM’s Brian Brown also lies about the stakes of this ruling (“But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states”), and predictably ties it to a fundraising appeal.

In fact, the Court ruled on a much narrower question: Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation “marriage” applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no.

The ruling relies heavily on the Supreme Court’s Romer v Evans decision, a 1996 ruling which overturned an anti-gay law in Colorado. Justice Kennedy was the author of the Romer decision, which could be relevant, since Kennedy is likely to be the swing vote if the Supreme Court accepts the inevitable appeal to the 9th Circuit’s decision.

From the Court’s decision:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all parties agree that Proposition 8 had only one effect. 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 relationship. Nothing more, nothing less.

Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or 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.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” (Romer v. Evans, 517 U.S. 620,633).

The Court specified that its ruling applies only to California. They also ruled that Protect Marriage had standing to appeal, and they rejected the argument that Judge Walker was required to recuse himself because he is gay and in a relationship. (I agree with the Court on both those decisions.)

I’m actually not disappointed that this ruling is so narrow; my suspicion is that a straightforward finding that same-sex couples have a constitutional right to marry would be overturned by the current Supreme Court, which would be a setback. This decision, because it’s so narrow, has a much better chance of remaining good law.

If you want to read more, Andrew Sullivan has a good collection of links.

UPDATE: Oren Kerr’s comment is worth quoting in full:

Based on a quick skim, [Judge] 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 [Justice Kennedy] 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.

Although interesting, of course that’s just speculative. And just because a decision may be strategic doesn’t mean it’s incorrect on the legal merits, of course.

UPDATE 2: More links!

  1. Liz Newcomb worries that the dissent could signal that this decision will be in trouble at the Supreme Court level.
  2. Nancy Polikoff does a great job nutshelling the decision.
  3. And David at the Debate Link is struck by the weirdness of this decision.
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5 Responses to 9th Circuit Court Rules That California’s Proposition 8 Is Unconstitutional on narrow grounds that won’t apply outside California

  1. 1
    james says:

    The amazing thing is just how little they’re arguing about. Branding basically.

  2. 2
    Susan says:

    I haven’t read the opinion yet. Lazy lazy.

    I’m suspecting that the Supremes may not be anxious to tackle this issue right now in all its complexity; if I am right, what is said to be the narrowness of this decision will provide them a perfect out. The US Supreme Court is unique among our courts (thank you, John Marshall) in that it does not follow precedent, even its own. Accordingly it is inherently unpredictable. US Supreme Court decisions are inescapably political.

    (We all know, do we not, that appeal to the Supremes is not of right. Appeal to the circuit from the district court is an appeal of right. But the US Supremes are different. To reach them you need them to grant a petition for a Writ of Certiorari, one of the Great Writs, and grant of the Writ is entirely within the discretion of the Court.)

    The wisdom of our system, if you choose to regard it as wisdom, is that the several States are usually left to work these matters out for themselves, and only when consensus is reached (or horrendous injustice is done, as in the civil rights matters) does the central government intervene.

    Of course the DOMA is an insolent slap in the face to this principle, and is furthermore unconstitutional on its face. That said, we do seem, as a people, to be working this thing out. Democracy is messy, the worst system of government…..except for all the other alternatives anyone has so far come up with.

  3. 3
    Elusis says:

    I love Romer v. Evans. You cannot make one class of person a “stranger to the law” – such an eloquent way of saying “you can’t pass laws just to be a dick to a group of people you don’t like.”

  4. 4
    nobody.really says:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” (Romer v. Evans, 517 U.S. 620,633).

    Oh, I’m diggin’ this. But I’ll go with a slightly different phrasing of the rationale.

    Moral: Hate gays? Knock yourself out. But don’t use the levers of government for that purpose. Those levers are for legitimate governmental purposes only.

    Is there a legitimate governmental purpose in facilitating good child-rearing or education? Sure. What if a narrowly-tailored public policy promoting a legitimate governmental purpose had the incidental effect of discriminating against homosexuals? So be it. Ergo, all the proponents of Prop. 8 had to do is identify a legit governmental purpose for which the proposition was a narrowly-tailored policy. Easy-peasy, right?

    Alas for the proponents of Prop 8, they could identify NO purpose for the law – legitimate governmental or otherwise – except the purpose of teaching values. Specifically, teaching people to value homosexual unions less than heterosexual ones.

    I have a phrase for when government engages in the practice of teaching values unrelated to a legitimate governmental purpose: “the Establishment of Religion.” And the 1st Amendment says it’s a no-no.

    Dear Government: I’ll decide what I value, thank you very much. I’m appalled at the idea that you might claim my body during a military draft, but I can at least understand the legitimate governmental purpose. But keep your damn laws off my MIND.

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