Dr. Jillian T. Weiss

Ninth Circuit Charts Its Own Course To Marriage Equality in Perry v. Brown

Filed By Dr. Jillian T. Weiss | February 08, 2012 12:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: Judge Walker, marriage equality, Ninth Circuit, Perry v. Brown, Perry v. Schwartzenegger, Prop 8, Prop. 8, same-sex marriage

The Ninth Circuit has ruled on Judge Walker's extremely well written opinion from 2010 in Perry v. Schwartznegger, striking down Prop 8, the California ballot initiative that amended the California Constitution to cut out the marriage equality that the California Supreme Court had found in its Constitution. (You can see my summary of Judge Walker's opinion here.)

The Ninth Circuit opinion, now called Perry v. Brown (because Gov. Brown is now the Governor of California), is as fascinating as Judge Walker's opinion, as much for what it leaves out as for what it says. First of all, it disposes of the silly argument that Judge Walker should have taken himself off the case because he's gay. Second, it lets the appeal go through even though the California Governor, the nominal defendant in the case, decided not to press the appeal.

But the really fascinating thing is that the Ninth Circuit redefined this case. They charted their own course, reinterpreted the facts and the law, and came up with a totally different explanation of why Prop 8 is unconstitutional. It's not about the constitutionality of same sex marriage. In fact, they go out of their way at the very beginning of the opinion to point out that they are not saying that same sex marriage must be granted under the Constitution. Wha? Aren't all the news media saying that the Ninth Circuit upheld the constitutional right to same sex marriage? Well yeah, but they're wrong. Since when have the news media understood the law?

The Court specifically rejected the idea that they were ruling on the constitutionality of same-sex marriage.

We'll Ask Our Own Questions, Thank You

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...We need not and do not answer the broader question in this case, however, because California had already extended to committed 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.

Ninth Circuit opinion at page 6.

Narrow grounds? What narrow grounds are they talking about? The Court is talking about the narrow question it decided: "the validity of Proposition 8's elimination of the rights of same-sex couple to marry." (p.7) In other words, this isn't about whether states must offer marriage equality. It's about whether states may take it away once granted by the state constitution. The Supreme Court of California had found, in the 2008 Marriage Cases, that the California Constitution did not permit exclusion of same-sex couple from marriage. Proposition 8 was passed in response to the California Supreme Court's decision in the Marriage Cases.

Prop 8 Had A Single Track Mind

The Ninth Circuit took pains, however, to explain that Proposition 8's effect is not to prohibit or nullify same-sex relational rights, but to "carve out a narrow and limited exception to the state constitutional rights [articulated in the Marriage Cases], reserving the official designation of the term marriage for the union of opposite sex couples as a matter of state constitutional law, but leaving undisturbed all of the other extremely significant substantive aspects of a same-sex couple's state constitutional right to establish an officially recognized and protected family relationship and the guarantee of equal protection of the laws." (p. 15-16) In other words, according to the Ninth Circuit, Prop 8 merely said you can't use the word "marriage," but it didn't nullify the substantive effects of the Marriage Cases. Same sex couples have the same rights as any married couple with regard to having an officially recognized and protected family relationship, and the Court cited a list of a dozen rights. (p. 36)

This interpretation of Prop 8 is, in my view, of profound significance to this case, because it means that the only question to be reviewed by a court regarding Prop 8 is the effect of the title of "marriage." Since same sex couples still retain all of the rights and privileges extended by the Marriage Cases, it is irrelevant whether same sex parents are better or worse, because they have the right to be parents regardless of Prop 8. Judge Walker made this point in his opinion somewhere, I forget where, but it was a side point. In the Ninth Circuit opinion, it's the main show.

Because the Ninth Circuit made the whole case about the title "marriage," it ruled that there was only one single fact that mattered of the eighty findings of fact contained in Judge Walker's opinion -- "domestic partnerships lack the social meaning associated with marriage." And the Court then sewed this up by noting that Proponents of Prop 8 had conceded the truth of this fact in the early stages of the lawsuit. The Proponents had said this: "Proponents admit that the word 'marriage' has a unique meaning," and "[Proponents a]dmit that there is a significant symbolic disparity between domestic partnership and marriage." (p.32)

Sorry, Judge Walker, But Thanks For Playing

In fact, the Ninth Circuit completely rejected the legal reasons that Judge Walker used to invalidate Prop 8. Judge Walker had said it was unconstitutional because it deprived same sex couples of the fundamental right to marry, guaranteed by the due process clause, and excluded same-sex couples from the state-sponsored marriage relation that it allowed to opposite sex couples, in violation of the Equal Protection Clause. The Ninth Circuit said these weren't the reason for Prop 8's unconstitutionality. Instead, they said the reason was the fact that Prop 8 "singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and...the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason." (p 33-34) The Ninth Circuit noted that Judge Walker's reasons could be correct, but would have a broader effect because they would require marriage equality across the nation. They preferred their narrower reasoning -- that Prop 8's specific stripping of the pre-existing rights of same sex couples to marry, previously found in the California Constitution, was discrimination against a minority.

The Appeals Court Plays RealPolitik

In truth, I'm not sure that the distinction that the Ninth Circuit makes is all that legally and philosophically profound. I don't know that taking away rights given for a day or a week or a month is really different from rights owed but never given, but it certainly narrows the decision to only affect California. Politically, that's going to be a lot more palatable to the Supreme Court than Judge Walker's wide-ranging opinion that would overturn the denial of marriage equality in every state in the country. And so, in that sense, the Ninth Circuit showed more understanding of realpolitik than did Judge Walker. Maybe that's what it means to be an appeals court.

This trick also allowed the Ninth Circuit to hook this case in tightly with a previous Supreme Court case where voters also stripped gay people of rights, the 1992 decision in Romer v. Evans. In that case, the voters of Colorado passed a referendum stripping Colorado cities of the right to pass sexual orientation civil rights ordinances. The Supreme Court held the law unconstitutional, ruling that "laws that single out a certain class of citizens for disfavored legal status, which raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." The Ninth Circuit said that Prop 8 did exactly that. Prop 8 had a less sweeping effect on same sex couples than did the 1992 Colorado law, because of the California Supreme Court's interpretation that Prop 8 only removed the title "marriage" from the relations of same sex couples, while leaving all other rights intact. Nonetheless, the Ninth Circuit said that Prop 8 is no less problematic than the Colorado law merely because its effect is narrower. "To the contrary, the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect." (p 46)

Prop 8 Is Not "Rationally Related" To Its Alleged Reasons

Nonetheless, the Ninth Circuit recognized that the State could strip away rights if the State had a legitimate justification. That's a pretty low bar. In most cases of this type, stating that a State can take action if it has a "legitimate" purpose is tantamount to saying that it is presumed to have a legitimate purpose and that the statute in question is perfectly constitutional. Still, the Supreme Court had held in the Romer case that the statute wasn't sufficiently connected to any legitimate reasons, so the Ninth Circuit felt on legally solid ground in saying that Prop 8, too, wasn't connected to any legitimate reasons.

The Ninth Circuit reviewed the "legitimate State interests" advanced by the proponents of Prop 8: responsible procreation and childrearing, caution in a new social area, religious freedom, and preventing child from being taught about same-sex marriage in schools. Interestingly, the Ninth Circuit did not bother to dispute the existence of these reasons as legitimate State interests. Rather, it found that these reasons had no connection to Prop 8.

We need not decide whether there is any merit to the sociological premise of Proponent's first argument -- that families headed by two biological parents are the best environments in which to raise children -- because even if Proponents are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California. As we have explained, Proposition 8 in no way modified the state's laws governing parentage, which are distinct from its laws governing marriage. Both before and after Proposition 8, committed opposite-sex couples ("spouses") and same-sex couples ("domestic partners") had identical rights with regard to forming families and raising children....In order to be rationally related to the purrpose of funneling more childrearing into families led by two biological parents, Proposition 8 would have had to modify these laws in some way. It did not do so. (p. 56)

The Court noted that it wasn't suggesting that it would validate a stronger Prop 8, as that would be unconstitutional for other reasons. It also knocked out the proponent's reasoning that there was no need to encourage same sex couples to avoid accidental procreation. The question here, in the Ninth Circuit's understanding of it, isn't one of extending marriage, but of withdrawing it. While there may be no need to encourage gay people not to breed accidentally, that's irrelevant to the question of whether the right may be stripped away, once given for other reasons. It laughed at the suggestion that stripping same sex couples of the title "marriage" would encourage heterosexuals to get married ("could not reaonably have conceived such an argument to be true"). It also laughed off the "proceed with caution in a social experiement" argument, because the horse had left the barn -- the amendment was an absolute and permanent ban enacted after the State provided the right to marry and after more than 18,000 couples had married.

It also addressed two other silly reasons brought up on appeal. The idea that marriage rights impinge on the liberty of religious organizations to deny services to married same sex couples is simply wrong. The state's strong anti-discrimination laws already provided for that, and Prop 8 did nothing to change that. And the idea that Prop 8 would stop children from hearing about same-sex marriage in school is ludicrous, because California schools aren't required to teach anything about same-sex marriage both before Prop 8 and after, and both before and after Prop 8 they are and were subject to the non-discrimination laws that would prohibit teaching the superiority or inferiority of relationships based on sexual orientation.

The part of the opinion that I think has the greatest significance is the quotation of Lawrence v. Texas, the 2003 Supreme Court case that struck down the sodomy laws as unrelated to any legitimate state interest.

Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself. "The fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack."

(p. 71, quoting Lawrence v. Texas) This validates my view, as I discussed in my 2010 law review article, that Lawrence has widely been misunderstood. Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas. Lawrence has made it possible to argue successfully that laws and policies impacting sexual orientation and gender identity are not rationally related to state interests, such as morality and gender classifications, even though such interests are legitimate. At least, that's how I read it.

Now, What Will The Supreme Court Do?

The Supreme Court could take this case and decide it, or not, as it chooses. I gave an explanation of what I thought the Supreme Court would do with Judge Walker's opinion, but this opinion is a different kettle of fish. I'll have to think on it, but it seems to me that, from both a political realpolitik and legal point of view, this Ninth Circuit opinion is going to be much easier for the Supreme Court to swallow, if it takes the case. In the meantime, I am going to celebrate and enjoy this victory. We deserve it.

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