Victory in California: What to Take from the Ninth Circuit’s Decision

Yesterday gave American progressives two strong pieces of good news: first, Rick Santorum swept a few early primary and caucus states, gaining not so many delegates, but considerable momentum, and therefore guaranteeing that the continuing disaster that is the Republican primary season will drag on for… a while.

Second, and more importantly, the Ninth Circuit Court of Appeals sustained Judge Vaughn Walker’s decision of August 2010 striking down, as unconstitutional, California voters’ attempt to end gay marriage in their state (styled Proposition 8). Perry v. Brown follows the tradition of Romer v. Evans, 517 U.S. 620 (1996), the last comparable gay rights case to reach the Supreme Court, where a six-judge majority threw out a Colorado provision which purported to invalidate city- and community-level ordinances prohibiting discrimination against gay citizens. Circuit Judge Reinhardt quoted Romer to build on this sentiment, in his opinion for the 2-1 panel:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California. [. . . .] The Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 U.S. 620, 633 (1996).

Slip op. at 5. Set against this background, Perry‘s holding reinstating gay marriage as a constitutionally protected right in California seems a garden-variety exercise of judicial review. It is, after all, settled law that “we don’t like them” fails to provide a rational basis to strip an otherwise inoffensive class of important rights. But because Perry will likely proceed to the Supreme Court, and to meet the opening conservative criticism, some interesting points about the Perry decision:

  • Perry applies rational-basis review: this is as-expected, since homosexuals are not yet a protected class, and reflects the highest possible deference to the people. (Shockingly, Maggie Gallagher appears not to understand this point.) The benefit for plaintiffs is that, although the Court declined to recognize homosexuals as a protected class, they conclude that even indulging in every favorable inference in favor of the peoples’ basis for enacting Proposition 8, the measure fails a basic test of rationality.
  • That puts Kennedy in a bind: For Prop 8 proponents, that should sting a little. But it also opens up the possibility for the Supreme Court to reverse, and hold that rational basis review requires broader deference than the Ninth Circuit offered. Interestingly, that would be a hard argument for Justice Kennedy to make. He was the author of the opinion in Romer that held that animus is never “rational,” meaning that, to reverse Perry, he’d have to reverse himself, or weasel his way out of his own logic.
  • Threshold issues didn’t matter: contrary to our predictions, the Ninth Circuit disposed of the standing issue summarily.
  • The Court is protecting itself: Judge Reinhardt very carefully limits the scope of his holding to the peculiar case of California, where gay marriage was a constitutional guarantee (if only due to the California Supreme Court) before the voters wiped it out. By focusing on the negative nature of Prop 8, the Court avoids (it says) making any argument that could suggest a positive case for gay marriage in those states lacking a pre-existing constitutional right. Slip op. at 6.
  • The Court is protecting Judge Walker: the lower court’s decision became a cause célèbre for its extensive factual findings, setting out the value of marriage to gay and straight couples alike, and the motivations behind the enactment of Prop 8. But some legal commentators have questioned whether it won’t be all too easy for higher courts to disregard Walker’s finding, as falling outside the bounds of the traditional types of trial facts to which we afford great deference. Perry compromises, by narrowing the universe of relevant facts, before finding the subset of relevant facts worthy of deference. Slip op. at 32. The effect is to sully Judge Walker’s larger opus, but guarantee that the Supreme Court can’t use Walker’s factual findings against him to (say) order retrial.

The second point dominates the rest, and indicates that this could be an easy (even a 6-3) win for gay marriage advocates. But since, as written, the decision doesn’t declare a positive right to gay marriage, it won’t guarantee nationwide recognition of gay marriage. Even if it will usher in a landslide of parallel litigation designed to settle that very issue.

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