In the latest installment of the Proposition 8 fracas, a panel of the Ninth Circuit made up of three judges--Judge Reinhardt (nominated by President Carter in 1980), Judge Hawkins (nominated by President Clinton in 1994) and Judge N.R. Smith (nominated by President Bush in 2007)--determined that Proposition 8 violated the equal protection clause of the Fourteenth Amendment. The panel split 2-1 in favor of upholding the District Court's opinion invalidating Proposition 8, with Judge Smith filing a partial dissent on the constitutional elements of the case. The Due Process part of the judgment from the District Court was not addressed in the opinion, so an evaluation of this argument is not included below.
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| Gay couples and their supporters protest in California |
The differing opinions in this case are focused around whether or not denying gays and lesbians the right to call a governmentally-blessed union a "marriage" is a violation of the Equal Protection clause of the 14th Amendment. The majority believes that it is.
In California, other laws allow couples in "domestic partnerships"--which includes both opposite- and same-sex couples--the full rights afforded to "married" couples, including the rights surrounding medical treatment and parental/adoptive rights. The California Constitution contains a fundamental right to marry for all people that has been validated by the California Supreme Court, regardless of the sex of the partners in the couple. Proposition 8 sought to redefine "marriage" in the California Constitution on a procedural level, without taking away any of the other substantive rights previously held by same-sex partners. In essence, Proposition 8 made it impossible for same-sex couples to be legally designated as "married," and that is all.
Because homosexuals have not been defined as a suspect class entitled to greater protections (like those of other minority or underrepresented groups--women, non-whites, people of different ethnicities), the law must have a rational basis in order for it to be upheld. That means that if there is a rational legitimate governmental aim--including moral disapproval or animus if combined with additional reasons--then the law is constitutional and valid.
Proponents of Proposition 8 claimed that the government has an reasonable interest in promoting procreation and biological families. The majority agreed, but found that Proposition 8 did not actually change the ability of same-sex couples to procreate or raise children. As a result, the majority found that the law itself did not fulfill this governmental interest. The Court similarly rejected reasons based on religious freedom--protecting pastoral persons from anti-discrimination laws for refusing to bless a marriage--and preventing same-sex unions from being taught in schools. As the Court noted, Proposition 8 made no changes to the autonomy of churches or schools to decide how they address same-sex unions, so there could not be a rational basis for the law. A final reason, "to proceed with caution before making significant changes to marriage" also failed to attract the majority, which found that California had already provided full rights to same-sex couples, so there was little impact that redefining marriage could have.
In fact, the Court found that Proposition 8 was only designed to deprive gays and lesbians of the "State's authorization of that official status and the societal approval that comes along with it" (Slip Op. at p. 37).
The dissent disagreed, finding the potential justifications on procreation and incremental changes in marriage equality to be sufficient rational bases for the law to be valid.
It should be noted that officials of the Government of California, named defendants, did not argue or participate. Standing was conferred on the proponents of Proposition 8 who, under California law, have the ability to litigate on behalf of the government if the government chooses not to pursue the case. This issue was settled by the California Supreme Court, and the Ninth Circuit acknowledged that because the proponents of Proposition 8 were entitled to litigate on behalf of the state under state law, they were entitled to equal standing under Article III as California would have had. Their arguments, however, were required to be colorably those which the government itself would have advanced. A challenge of the District Judge's impartiality--given that he was gay and might be interested in obtaining same-sex "marriage" for himself--was also rejected by all three members of the Panel. Judges should be able to rule impartially on issues, and the Court affirmed Judge Vaughan's ability to hear and fairly decide this case.
On the issue of the constitutionality of same-sex marriage on the whole, the Court demurred. Able to find safe haven in California's laws, the Court avoided this question altogether.
There are some amusing moments in Judge Reinhardt's opinion when he describes the place that the term "marriage" has in society--and thus the impact of denying its use to gays and lesbians, (Slip Op. p. 38), including a play on the title of the film "How to Marry a Millionaire," which became "How to Register a Domestic Partnership with a Millionaire." I was almost surprised that the majority did not repudiate the adage "Sticks and stones may break my bones, but words will never hurt me." The opinion's wit may draw smiles, but it may equally undermine the central thesis of the majority opinion: that the term "marriage" holds greater significance and confers greater respect than "domestic partnership." The Court might have been better served to look at other instances where different terminology leads to different results, and to focus on how important legislative precision is in our system. The law uses language to send messages. Sometimes those are clear, and sometimes they are vague, and that is both by accident and by design. But when Courts and governments are required to enforce those terms, their importance becomes clear; the weight of the words becomes clearer.
Having two different terms to describe the same conduct under the law is unconstitutional if it singles out a certain group as less important, less legitimate or less acceptable. Animus is not rational basis, under the Constitution, and that is why Proposition 8 will not last much longer. In Pennsylvania, this does not change much. The basis for the majority's conclusions stemmed from California's liberal protections. The Court does not address broader issues surrounding gay marriage. What this could mean in the future is that the terminology used to describe civil unions and marriages--if the rights are substantively identical but the terms are different--may be subject to challenge. This means that if you provide full rights to two classes of people, the State may be forced to call those rights by the same name. Marriage versus civil union/domestic partnership may be like Kleenex to tissue: for all intents interchangeable (though Kleenex does have trademark protection, so it would be afforded greater protection). This is a good thing, as legal distinctions between classes of people are not constitutional in most cases, and changing the terminology is an important first or final step to achieving equality.
As for Perry v. Brown, the appeal is expected to continue, with a request for an en banc hearing (the full Ninth Circuit Court) and then an appeal to the Supreme Court. Despite the enjoyment that the Supreme Court takes in reversing the Ninth Circuit, I imagine that this case will be denied rehearing in front of the full Ninth Circuit and denied certiorari. The central question of the constitutionality of gay marriage is no longer alive in this case, and the value of continuing is dubious.
Read the opinion here.
