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In today's Ninth Circuit Court of Appeals decision, Perry v. Schwarzenneger, the Court invalidated California's Proposition 8, finding that there was "no legitimate reason" for California to withdraw the right to marry from gay and lesbian couples. But how the Court came to its conclusion is a bit complicated. For example, even though the Court said there was "no legitimate reason" to withdraw the right to marry from same-sex couples, the Court somehow managed to avoid making any determination on whether any of the various justifications offered in favor of Prop 8 were actually "legitimate."

What does it all mean? It's enough to make a non-lawyer throw up her hands in exasperation. Hence, this diary.

Follow me below the squiggle and I'll do my best to explain the Court's reasoning.

The Holding.

1. The 9th Circuit affirmed District Judge Vaughn Walker's ruling that Proposition 8 is unconstitutional, but it based its finding on narrower reasoning than that used by Judge Walker.

2. Because the California Supreme Court's decision in In re Marriage Cases had previously extended the right to marry to gays and lesbians, the 9th Circuit addressed first the narrow question of whether taking away a previously-extended right from a particular group served a legitimate purpose.

3. The Court held that Proposition 8's elimination of an "important right" (but not necessarily a "fundamental right") that had been previously extended to gays and lesbians violated the Equal Protection Clause because the law was passed without a "legitimate justification."

The Limitations of the Holding.

1. The Court did not decide the broader question "whether under the Constitution same sex couples may ever be denied the right to marry." Thus, the Court did not actually rule on Judge Walker's two stated reasons for finding Prop 8 unconstitutional, which were (1) Prop 8 violated the Due Process Clause by denying gay and lesbians the "fundamental right" to marry, and (2) Prop 8 violated the Equal Protection Clause by excluding same-sex couples from state-sponsored marriage while allowing opposite-sex couples access to that status, without a "rational purpose."

The Rationale.

1. The Court found that there was "no legitimate reason" for withdrawing the right to marry from gay and lesbian couples. But the Court avoided making any determination on whether or not any of the various justifications offered for Prop 8 were actually "legitimate."

2. It did so by finding that Prop 8 did not actually further any of the purposes offered as justification.

3. Both sides had agreed that California had already extended virtually all the same substantive rights to same-sex couples as it had to opposite sex couples, "except the official designation of marriage and this the officially conferred and societally recognized status that accompanies this designation."* Thus, the only effect of Prop 8 was to withdraw the state-sanctioned dignity and title of "marriage" from same-sex domestic partners while leaving in place all their duties and responsibilities. The decision hinges on this crucial fact.

4. In other words, the Court didn't have to decide whether (as claimed by proponents) there is a legitimate state interest in responsible procreation and child rearing, or in encouraging opposite sex couples to engage in responsible procreation, or in supporting the best family structure for child rearing, or in encouraging opposite sex couples to marry, or in protecting religious liberty, or in preventing teaching about same-sex marriage in schools, because Prop 8's passage had no effect on any of these ends. Its only effect was to strip a class of persons of the dignity and recognition of a title that had previously been bestowed upon them. (The decision discusses at length how those effects, though limited in scope, are actually quite substantial.)

5. The Equal Protection Clause requires a legitimate reason for a law to single out a particular class of persons for disparate treatment. Without a legitimate justification in sight, the Court was left with the conclusion that the real purpose behind Prop 8 was animosity towards or disapproval of the class of persons affected. And such a purpose is exactly what the Equal Protection Clause prohibits. Note that this holding does not require a determination that gays and lesbians are a "suspect class" like race or sex, for which laws are subjected to a higher level of scrutiny.

* (California's 2003 Domestic Partnership Act provides: "Registered domestic partners shall have the same rights, protections and benefits, and shall be subject to the same responsibilities, obligations and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.")


1. The decision is stayed until the Supreme Court either rules or denies certiorari (it can refuse to hear the case).

2. Although California is presently unique in having repealed the right for same-sex couples to marry, the decision can have precedential effect outside California should another state in the 9th Circuit do the same thing. (I'm looking at you, Washington.) This effect is likely to be short-lived, though, since the Supreme Court will probably grant certiorari.

3. The proponents probably stipulated to Prop 8's limited effect because they felt that it would make the rights at stake less "fundamental." Ironically, Prop 8's effect was so limited that the 9th Circuit found that that all the policy arguments in favor of the idea of restricting marriage to opposite-sex couples were irrelevant, thus exposing the improper motivation for the law.

4. The Court relied heavily on the US Supreme Court's 1996 decision in Romer v. Evans, where Colorado's Proposition 2, which invalidated all prior Colorado state laws and ordinances granting rights to gays and lesbians, was held to be an unconstitutional violation of equal protection because the law eliminated rights that had previously been granted to a particular class of persons. Romer was decided 6-3 and was written by Justice Anthony Kennedy, the justice that everyone expects will be the swing vote on this appeal. Thus, the decision was, in my opinion, rendered on the ground most likely to be upheld on appeal. Anti-gay forces' hopes of reversing the 9th Circuit in Perry depend on finding ways to distinguish it from Romer.

Unless they can, Prop 8 proponents are hoist by their own petard.

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Comment Preferences

  •  Tip Jar (8+ / 0-)

    You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

    by Simian on Tue Feb 07, 2012 at 03:23:32 PM PST

  •  question? (1+ / 0-)
    Recommended by:

    Can we appeal (in part) on the basis of the broader reasons Judge Walker ruled on which the 9th Circuit did not address?

    •  No, and yes. (0+ / 0-)

      That is, assuming by "we" you mean Prop 8 opponents. Prop 8 opponents won, so they wouldn't be appealing this ruling. But we can raise Judge Walker's rationale in opposition to the other side's appeal, as well as any other reason we can come up with.

      You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

      by Simian on Tue Feb 07, 2012 at 03:51:55 PM PST

      [ Parent ]

  •  All the money poured into this CA Prop 8 fracus (2+ / 0-)
    Recommended by:
    Simian, bythesea

    by the anti-gay out of state contributors and lobbyists must feel burnt to a crisp regardless of how finessed the decision looks, and in spite of all the expensive and artful weaseling games with lawyer logic.

    Would it be overstating it to conclude that perhaps the judges do intend the suit to die marooned in an untenable legal morass at this juncture?

    When life gives you wingnuts, make wingnut butter!

    by antirove on Tue Feb 07, 2012 at 03:51:20 PM PST

    •  I think that would overstate it a bit. (3+ / 0-)
      Recommended by:
      antirove, FG, kurt

      The 9th Circuit did untangle the legal morass from which this case came, although I didn't discuss it since it was not part of the main holding. It certified the question whether the Prop 8 proponents had standing to appeal (meaning it sent that question out to the California Supreme Ct. for a ruling), and got the answer back, "Yes." It also determined that it had jurisdiction to hear the case. So procedurally, it is all copacetic now.

      What they did, in my opinion, was hand the Supreme Court a very good reason to either deny certiorari or uphold the appeal. Since the decision followed good existing Supreme Court precedent (Romer) the Court could very well decide there is no controversy between the circuits worth of resolving, and let the case stand. If it does accept cert, it is still likely to uphold the decision, based on Romer. I very much doubt the Supremes would go any further and adopt Walker's rationale.

      You can tell Monopoly is an old game because there's a luxury tax and rich people can go to jail.

      by Simian on Tue Feb 07, 2012 at 03:58:21 PM PST

      [ Parent ]

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