I have been traveling out of the country for the last two weeks, and so am belatedly responding to the post by Matt Coles, who defended the Ninth Circuit decision in Perry v. Brown as solid constitutional law. I agree (and will also post the more extensive essay on the same topic that I have coming out in the Stanford Law Review online when it is published).
I also know, however, that many marriage equality supporters have criticized the Reinhardt-Hawkins decision. One of the nation's leading constitutional litigators told me sotto voce that its reliance on the fact that Prop 8 withdrew gay marriage, rather than prohibited it before it was adopted (as is the case in the other states that ban it), was weak tea. "It just doesn't make any sense to me," he said, "that the sequence of which came first would determine the constitutional interpretation."
There is pretty much of a consensus among the constitutional law professors that I hang out with that the Perry lawsuit was ill-considered and foolhardy because of the likely outcome if the Supreme Court grants review. (That’s my polite paraphrase.) Now the Ninth Circuit has produced an opinion that provides the Supreme Court with plausible cert deniability. Essential to achieving that goal, however, was crafting the decision so that it applied only to California and not to any other state. Constitutional doctrine enables this because of the principle that courts should adjudicate cases – especially those at the center of culture wars – by resolving the dispute on the narrowest possible grounds. A one-state ruling is about as narrow as it gets.
What is genuinely unique about California is that it is the only state where the state supreme court ruled that same-sex couples have a fundamental right to marry and that an exclusion also violates their equal protection rights – as an interpretation of state law – before a later state constitutional amendment (ie, Prop 8) eliminated those rights. As Matt Coles frames it, the question becomes – so what. Why does that matter in the legal analysis? The Perry court essentially responded by holding that there was no legitimate reason demonstrated in this case for withdrawing the right to marry, even if there were rational grounds for withholding it from same-sex couples.
I agree with the Ninth Circuit that singling out one socially disfavored group for the withdrawal of a right, regardless of when or how it was originally extended to them, reeks of animus. This, together with the denigration of gay people that saturated the pro-Prop 8 campaign, should trigger, as the court held, the kind of heightened rational basis that the Supreme Court utilized in Romer v. Evans. In other words, a targeted taking away of an important right (not identical but similar to the effect of the Colorado constitutional amendment invalidated in Romer) is directly relevant to the standard of review.
Traditional rational basis review allows loosey-goosey classifications that are under- and over-inclusive. Normally judges do not closely question the decision by a state to grant benefits to one or several groups and to exclude other groups who seem similar. It has been only when the classification is inherently suspicious (for example, because of race or sex) that the state had to muster a strong justification for why a particular group was excluded. For example, a court will stringently review why an ethnic group was excluded from a particular program, but not why all landlords or all rental car drivers were. The Perry opinion finds that selective withdrawal of an important right from an unpopular group – because it so strongly signals animus – triggers a more searching form of review.
When, in the next step of its logic, the court applies that heightened rational basis review to Prop 8, it accepts the proposition that there might be a rational basis for a state to limit the benefits linked to marriage to only those couples who might "accidentally procreate." Including same-sex couples would not advance that interest; ergo, it might be permissible under rational basis review to exclude gay couples. But, the court reasons, the proponents of Prop 8 have advanced no legitimate purpose that is rationally related to the decision taking away that right. (My colleague Marty Lederman has done a terrific job of spelling out this part of the opinion.)
The difficulty with the court’s reasoning – and what I think lies behind the criticism of the opinion by so many supporters of marriage equality – is that the accidental procreation argument itself is so tenuous that, by treating it as plausible, it seems like the court is contorting itself to reach an outcome that applies only to California and, as everyone recognizes, would make it easier to escape a writ of certiorari to the Supreme Court.
I agree with Matt that one historical basis for marriage could be the belief that its material and intangible benefits would enhance the likelihood that adults who unintentionally conceive children will legally bind themselves to each other to provide a stable family dynamic for raising children. Would a state really calibrate the scope of marriage so that only this group of children benefits? The Ninth Circuit essentially says that it is possible for that policy choice to be rational. However, the court found, for the effectuation of this purpose, the defenders of Prop 8 must show that California voters could have rationally believed that this is the goal that they would be achieving by enacting Prop 8. And – given that Prop 8 changes none of the equal benefits that flow to same-sex couples as parents, combined with all the evidence of anti-gay animus, this explanation for Prop 8 is just not plausible.
Meanwhile – Of late, Justice Ginsburg has been repeatedly noting in her speeches that, while she believes that Roe v. Wade was decided correctly, she also believes that the decision went too far, too fast. It would have been preferable, she says, for the Supreme Court to have struck down only the two state statutes that were before it, rather than issue a ruling under which every state's abortion law was unconstitutional.
This is what is known as a hint.