Judge Vaughn Walker's opinion in Perry v Schwarzenegger concludes that California's Proposition 8 (which effectively made homosexual marriage illegal) is unconstitutional under the Due Process Clause and the Equal Protection Clause. In overturning Prop 8, Judge Walker held:
Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis,the court concludes that Proposition 8 is unconstitutional.
Walker's opinion is well-reasoned and carefully constructed, and sends a clear warning shot to other states which have banned homosexual marriage. Walker held that the right of homosexuals to marry is a "fundamental right," which demands a higher level of scrutiny when government action infringes upon that right. However, perhaps anticipating that an appeals court would disagree with the "fundamental right" assessment, Walker also addressed the case on a lower rational basis review and found that even under that review Prop 8 was unconstitutional.
As California now knows, advancing even a rational basis won't be easy for any state- something that Justice Scalia noted in his dissenting opinion in Lawrence v. Texas (a case which held that anti-sodomy statutes are unconstitutional when applied to the acts of consenting adults in private quarters):
Today’'s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.
Judge Walker's opinion brilliantly cited Justice Scalia's statement above, all but daring Justice Scalia to overturn Scalia's own reasoning in Lawrence v. Texas. Of course, that won't be easy for Justice Scalia.
Lawrence v. Texas itself overturned a 1986 case, Bowers v. Hardwick, which effectively held state prohibitions on homosexual conduct are permissible under the Constitution. The Supreme Court generally adheres to the legal principle of stare decisis, which demands that judges uphold rulings established in prior cases. Scalia's dissent makes clear that he believes Bowers v. Hardwick should not have been overruled, but Scalia perhaps regrets his strong dissenting language connecting the decision in Lawrence v. Texas to the constitutionality of gay marriage. While Scalia himself can ignore stare decisis entirely if he so chooses, lower court judges cannot (at least with respect to Supreme Court decisions). Walker was correct to note, then, that if Scalia's dissent (which was joined by Chief Justice Rehnquist and Justice Thomas) says the Court's decision means gay marriage must now be held constitutional, there's a good reason to think gay marriage is constitutional.
Scalia will likely get an opportunity to revisit his words in Lawrence, as the Prop 8 case is almost certain to find its way to the Supreme Court at some point. When that occurs, Scalia will have to make several choices, the first of which will be whether to respect Lawrence v. Texas as binding precedent. If Scalia accepts that Lawrence is binding, his dissent makes clear that he would uphold gay marriage (there being no rational basis to deny homosexuals the right to marry).
Scalia alternatively may attempt to argue that Lawrence is not binding, but that can only be accomplished in one of two ways: 1) overturning Lawrence; or 2) distinguishing Lawrence from the Prop 8 case. With respect to the first, overturning Lawrence would effectively reinstitute Bowers as the law of the land. That would be a devastating blow to the homosexual community, moving backwards not only on homosexual marriage but also on anti-sodomy laws. Such an outcome seems highly unlikely, however, for several reasons. As mentioned above, the Court is reluctant to overturn prior holdings. Overturning a holding which itself overturned a prior holding would be messy and problematic. Furthermore, even if Scalia and Thomas join forces to overturn Lawrence, it's unlikely they have the votes to succeed. Justice Kennedy, who is typically the swing vote on closely contested cases, authored the opinion in Lawrence v. Texas. Kagan, Sotomayor, Ginsburg, and Breyer are also highly unlikely to overturn Lawrence (Ginsburg and Breyer joined the majority in Lawrence).
If Scalia can't overturn Lawrence, that leaves him with distinguishing Lawrence. Scalia's bombastic writing style has landed him in hot water here, however, as Scalia expressly argued in Lawrence that it is impossible to distinguish between Lawrence and a case involving the right of homosexuals to marry.
Assuming the left/right composition of the Court does not change in the next four years or so, Judge Walker's ruling is likely to be upheld by the Supreme Court. That doesn't mean that homosexuals have an unfettered right to marry, but for now it means that a state's prohibition of homosexual marriage must pass "strict scrutiny" (the standard of review for infringement of a fundamental right), or, if rational basis review is used instead by an appeals court, a rational basis for prohibiting homosexual marriage (and given the difficulty of showing such a rational basis, homosexual marriage may become constitutionally entrenched).
In the meantime, the impact of Judge Walker's ruling likely won't be felt for some time. While Walker's opinion does have a legal effect within California, Walker has already issued a stay pending appeal to the 9th Circuit. As long as the stay remains in place, the decision will have no actual effect in California. Other federal districts and states are not bound by Judge Walker's opinion and to the extent litigation arises in those jurisdictions, those courts are free to reach an entirely different conclusion. The 9th Circuit will review the Prop 8 case on appeal, and if they uphold the decision, the 9th Circuit's opinion will be binding on all courts within the circuit (Alaska, Washington, Oregon, Idaho, Montana, Nevada, Arizona and Hawaii), but will not be binding on courts outside of the 9th Circuit. Only a US Supreme Court decision would be binding on all US jurisdictions.
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