I told you so.
Ted Olson and David Boies
Back in May 2009 when Ted Olson and David Boies filed the AFER complaint challenging the constitutionality of Prop 8, I told you not to dwell on its efforts to establish a freestanding right to same-sex marriage under the Equal Protection Clause, but rather to focus on Paragraph 43's allegation that "The disadvantage Prop. 8 imposes upon gays and lesbians is the result of disapproval or animus against a politically unpopular group."
This, I explained, set the case up to fall under a clear line of Supreme Court precedent (Romer/City of Cleburne/Moreno) standing for the principle that, as Justice Brennan put it in Moreno, "[I]f the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Or as Justice Kennedy wrote in Romer, concerning Colorado's anti-gay Amendment 2, a law which "classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else" cannot stand. And, so, I said back in May 2009:
[C]onsider the Prop. 8 question this way: is there a rational basis for the citizens of a state to withdraw the term "marriage" from its legal description of same-sex unions -- and only from same-sex unions -- when such a move seems solely to be motivated by the desire to stigmatize such couples compared to straight couples? In a way, Prop. 8 would have been more constitutional had it withdrawn more than the name "marriage" from same-sex unions and withdrawn concrete rights as well -- because then the state could argue for some cause-and-effect linkage in the amendment in demonstrating its preference for opposite-sex unions. Now, it's only about stigma and animus.
When Judge Walker struck down Prop 8 as unconstitutional
, he went beyond this point, not only holding that Prop 8 had been based upon animus but that there was no rational basis whatsoever for denying anyone in America marriage equality, period.
Continue reading below the fold.
Today's Ninth Circuit decision walks back from that perch. Instead, writes the Hon. Stephen Reinhardt, it's not a necessary question for today's purposes:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already committed to same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
The narrow grounds are the ones I suggested: that there is no rational basis for a state to take way the label "marriage" and only the label, not the rights
from same-sex couples. It's a decision that applies to Prop 8 only, and not to other states where marriage equality was never the law in the first place.
As I suggested before, the Ninth Circuit recognized the irony that if Prop 8 had been broader—had it taken away substantive rights from same-sex couples—it might have been more constitutional, because at least then the Court could consider proponents' arguments regarding procreation and childrearing. Instead, they wanted to take away the word, a word that deprived no same-sex couple of any rights in those areas, and it's a word that matters:
We are excited to see someone ask, "Will you marry me?", whether on bended knee or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven no hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie.
What's in a name? A lot:
By emphasizing Proposition 8’s limited effect, we do not mean to minimize the harm that this change in the law caused same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couples desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.
It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause.
This is a decision which the Supreme Court—if it hears the case at all—will affirm. It's written in Justice Kennedy's sweet spot, and I would not be surprised to see the Chief Justice and even Justice Alito potentially adhering to a precedent that said that if Romer
remains good law, Prop 8 cannot stand.
Am I disappointed this panel didn't go further? Not really. No one knows where the Supreme Court as a whole is on marriage equality. And, in particular, we can't be sure just where Justice Kennedy on marriage equality, and on this he is the key vote. He has made clear that he believes in the role of the Supreme Court to be a leader on issues of social justice—whether in expanding gay rights or in looking to international norms to scale back America's death penalty—and in this case Kennedy's grandiosity could be marriage equality's best friend.
But I wasn't willing to take that chance. For all we know, Justices Breyer and Ginsburg might not be ready to go that far. Moreover, you can't always rely on Justice Kennedy, who is a conservative, after all. Maybe he recoils from changing the national definition of marriage.
In truth, however, if the Court takes this case on appeal then they could Go Big, as it were, regardless of what the Ninth Circuit decided today. But today's decision gives them an easy route to a 5-4 affirmance (or more), and to allow the issue of equality to be sorted out through the political process for a few more years. No, same-sex couples shouldn't have to wait, but make no mistake: equality is winning.