Matt Coles, former Director of the ACLU LGBT Rights Project and now Deputy National Legal Director of the ACLU, and I will be trading comments this week on the Ninth Circuit panel decision in Perry v. Brown [2012 WL 372713].
Following are Matt's comments on the decision. I will respond in a future post.
Are taking away and denying different under equal protection?
Judge Stephen Reinhardt’s opinion for the Ninth Circuit Court of Appeals in the Prop. 8 case purports, in effect, to limit the decision to California. The only question the Court need answer, Reinhardt writes, is whether the “…elimination of the rights of same-sex couples to marry…” was constitutional (slip op. at p. 2, emphasis in the original). Since California is the only state that gave same-sex couples the right to marry and then took it back, the Perry case applies only to California as long as there is a constitutionally significant difference between withdrawing a right, as California did, and withholding it in the first place.
The context of a case can change the legal rule that applies. If I am arrested for speaking on public property, it matters whether I am standing in a park or at the entrance to the county jail. Speech in parks gets greater protection.
Judge Reinhardt appears to say that the difference between withdrawing and withholding does matter for constitutional purposes because withdrawing a right “…suggests a more deliberate purpose than does the inaction of leaving it as it is.” But amending a constitution to preemptively deny marriage to same-sex couples is more deliberate than inaction as well. More to this point, there isn’t much in equal protection law to suggest that degrees of deliberateness matter.
The Opinion seems to be on slightly stronger ground when it then invokes Romer v. Evans as authority for the proposition that withdrawing a right can violate the constitution even when denying it in the first place would not have. Colorado’s Amendment 2, the subject of the Romer case, took away the power of the Colorado legislature and local legislative bodies to protect gay men, lesbians and bisexuals from discrimination. There was no argument in Romer that Colorado was required to pass laws forbidding discrimination against LGB people.
Still, Romer won’t hold the weight the 9th Circuit wants to lay on it. Colorado’s Amendment 2 did repeal three municipal ordinances. But it also forbade the state legislature, which had not passed any laws protecting LGB people, from ever enacting any. The Court draws no distinction between the withdrawal of actual rights in the three cities and the preemptive withholding at the State House. In describing the effect of Amendment 2, it treats them as of a piece. The problem with Amendment 2 was not that it repealed the ordinances, but that it imposed a selective constitutional bar to protective legislation.
At one point the 9th Circuit opinion suggests that the somewhat confusing “literal violation” section of Romer establishes a rule of equal protection that withdrawing rights creates “an inference of animus” (slip op at 16), which requires “careful consideration” of possible legitimate interests which might rebut the inference (at 17). Over the years the Supreme Court has resisted the suggestion that from time to time it employs a form of “heightened rational basis” review. (See Heller). Nevertheless, if there is rule calling for more careful review once an “inference of animus” has been raised, the device that raises the inference under Romer is a selective constitutional bar to legislation, not a withdrawal of existing rights. An inference like that would be raised not just by Proposition 8 but by all 29 state constitutional amendments which forbid state legislatures from permitting same-sex couples to marry.
Still, there is another way that the context of a case may distinguish it legally from another otherwise similar case. Some aspect of the context may make the constitutional analysis turn out differently. That’s the other reading of Romer; that the selective bar on constitutional protection caused Amendment 2 to flunk the rational basis test when the failure to pass a protective law would not have. Whether the withdrawal of rights that was Prop. 8 does that as well is the subject of part 2.
Part 2: What makes California special
Even if the presence of a particular fact does not call up a different legal rule than its absence would, the fact can change the outcome of a case if it changes the way the constitutional analysis comes out. So for example in the Cleburne case, the city argued that requiring homes for the mentally disabled to go through a special permit process was rational because the area was in a 500 year flood plain, which raised evacuation concerns. Without more, that might have seemed rational. But the local zoning code allowed hospitals and other group uses without the special permit process. The Court found it difficult to see how group homes and hospitals could be thought different in terms of evacuation.
The question in the Prop. 8 case then is whether the fact the 9th Circuit focuses on—that Prop. 8 withdrew rights LGB people had—changes the way equal protection analysis comes—or ought to come—out.
The 9th Circuit says the sponsors of Prop. 8 and allied Friends of the Court offered four rationales for Prop. 8, and then gives us five: 1) increasing the likelihood that children will be raised by two biological parents; 2) channeling “irresponsible procreation;” 3) proceeding with caution before making major changes to marriage; 4) protecting religious freedom; and 5) preventing children from being taught that same-sex relationships are as good as heterosexual marriages.
The Circuit’s explanation of why the last three rationales are not rational does not in any sense turn of the fact that Prop. 8 withdrew rights from LGB people.
The Court says that a ban on marriage for same-sex couples cannot be thought of as “proceeding cautiously.” A moratorium, which allowed the legislature to decide after study (not far from what the Hawaii amendment did), it suggests, would be moving cautiously. A ban is an end. That’s true enough, but it is also true of the other 28 state constitutional bans passed by voters.
The Circuit tells us Prop. 8 can’t rationally be thought to have been aimed at making sure that religious institutions wouldn’t be required to provide services to same-sex couples since Prop. 8 didn’t change the anti-discrimination laws. That’s especially true since “domestic partnership” in California is a marital status protected from discrimination just as marriage is. If the crucial fact turns out to be that same-sex couples retain the same protection against discrimination, it’s a distinction California shares with the seven or eight (depending on what you do with Nevada) states that also have full civil union. If it’s the fact that the Proposition alone didn’t change the civil rights laws, it’s a distinction shared with the other 28 amendment states.
The Circuit has a similar explanation for why the teaching rationale won’t fly: Prop. 8 made no changes to the laws on what schools can or can’t teach. Whether that is true of some or all of the other 28 states turns on their education laws (some may require that marriage be taught as superior, while California does not). But even if California is alone here, it is because of its education laws, not the withdrawal of marriage. So we don’t know if California stands alone. (In this section, the Court hints at what might be a far better reason to reject this argument: that it comes down to nothing more than saying we will make LGB people inferior so that our children can be taught they are so. That seems a clear violation of the bedrock rule that you can’t make people unequal just because you want to treat them differently. But that’s another piece)
Then there is the first rationale—getting children raised by two biological—read opposite sex heterosexual—parents. According to the Court, Prop. 8 did not increase the likelihood that children will be raised by pairs of biological parents because it did not change California’s laws on parenting. Both before and after Prop. 8, committed same-sex and committed opposite sex couples had precisely the same rights and obligations to become parents and raise children. Again, all quite true, but true as well of all nine full civil union states.
Which brings us to the favorite of marriage opponents, “irresponsible procreation.” A lot of people make fun of this, but they shouldn’t. It isn’t crazy to think that one purpose of marriage is to entice and pressure heterosexuals to enter into a binding union so that they’ll stay together and raise their offspring together. It is one of the functions of marriage. Judge Reinhardt is quite right though that while pressuring heterosexuals to commit might explain why you would only extend marriage to them, it is no explanation for taking marriage away from same-sex couples. It is no explanation, that is, unless “channeling procreation” is the only purpose of marriage, something even the most rabid opponents of marriage for same-sex couples are unwilling to say (right now).
So while the fact that Prop. 8 took rights away from same-sex couples doesn’t change the legal rule used to analyze it, it does change the analysis. But not completely. And how much it is truly limited and how much it is not may have a great deal to do with what happens next. That’s the subject of part 3.
Part 3: Adding it up.
The claim that marriage is not extended to same-sex couples because one of its purposes is to pressure heterosexuals to have children inside a committed union may or may not make sense elsewhere. It doesn’t make sense in California where the issue is not who ought to be included in marriage, but why it ought to be taken away from same-sex couples.
That leaves the “irresponsible procreation” argument alive in the other states of the 9th Circuit and untouched by 9th’s reasoning elsewhere. That’s important, because “irresponsible procreation” has become the leading successful argument for not extending marriage to same-sex couples (see the Conaway case in Maryland, the Andersen case in Washington and the worst reasoned of the whole lot, the Hernandez case in New York).
Denying the protections of marriage to the children of same-sex couples might discourage some of those couples from having children where those protections aren’t otherwise available; that is in a state that doesn’t a civil union or domestic partnership. So that argument is alive in Arizona, Alaska, Idaho and Montana. But it is dead in Hawaii, Nevada, Oregon and Washington. The existence of identical treatment for both kinds of couples make “two biological parents” an untenable argument for refusing to extend as well as to exclude same-sex couples from marriage in civil union states. That’s probably true of the “religious freedom” and “teaching our children” rationales as well.
The “cautious approach to change” rationale is pretty much a dead letter in the 9th except in Hawaii, which fits the bill because it’s amendment allows the legislature to extend marriage to same-sex couples (all the 9th Circuit states passed anti-marriage state constitutional amendments).
So it is true that in one very important respect—the viability of what has become the leading argument for limiting marriage to opposite sex couples—California stands alone. Moreover, and this should not get lost in the shouting if the case does get to the Supreme Court, the Court’s reasoning on the other significant rationale—encouraging opposite sex parenting–apply to California and the other civil union states, but not beyond. So except for one patently silly claim—that forbidding something in your fundamental charter is a way of giving it measured consideration—even on the secondary arguments, this is no more than a case about granting legal equality but using the law to deny social equality. Not that that isn’t enough; it just isn’t everything.