The judicial opinion issued Tuesday by the Ninth Circuit Court of Appeals, which struck down Proposition 8 as unconstitutional, has charted a new path forward for advocates of marriage equality. Relying heavily on the Supreme Court’s decision in Romer v. Evans, the Appeals Court ruled that Proposition 8 does not satisfy the Constitution’s guarantee of equal protection of the laws because it irrationally takes away a right that gays and lesbians had previously enjoyed in the state of California: the right to marry. Tuesday’s narrow ruling, however, skirts the issue of whether the Constitution guarantees a right to same-sex marriage as a matter either of Due Process or Equal Protection. Although the invalidation of Proposition 8 is welcome news, gay rights activists should not settle for this narrow ruling; rather, they should press the judiciary for a constitutional right to same-sex marriage.
An Explanation of the Ruling
Bracketing the issue of whether the Constitution requires all states to allow for same-sex marriages, the Ninth Circuit Court of Appeals instead chose to answer whether voters in California may,
“…single out same-sex couples for unequal treatment by taking away from them alone the right to marry, and [whether] this action amounts to a distinct constitutional violation [since] the Equal Protection Clause [under Romer v. Evans] protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.”
Backers of Proposition 8 resisted this framing of the issue, insisting that the fact that gays and lesbians enjoyed the right to marry in California for a brief “143-day hiatus,” prior to the passage of Proposition 8, was an irrelevant fact. The Appeals Court disagreed:
“Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend the designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.”
The Court then proceeded to scrutinize the purpose and constitutionality of Proposition 8 under an extremely differential standard known as rational basis review, wherein the judges merely ask whether the law under consideration furthers any legitimate state interest. Proponents listed several “ legitimate interests” advanced by Prop 8; the Court struck down every purported interest as irrational. At one point, backers of Prop 8 argued that the purpose of marriage is to reduce the “threat of unintended pregnancies out of wedlock” and so foster “responsible procreation.” Because same-sex couples are not at risk of accidental pregnancies, the argument continued, there is no need to offer them access to the institution of marriage. Further still, proponents also contended that prohibiting same-sex marriage would strengthen “traditional” families. The Court’s response to this claim bordered mockery:
“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational basis standard is not a toothless one. Even the standard of rationality must find some footing in reality.”
Exhausting the list of interests offered by proponents, the Appeals Court concluded that Prop 8 was merely the product of animus and served only to “lessen the status and human dignity” of LGBT people.
What The Ruling Means Moving Forward
Because of the operating structure of the Ninth Circuit, Tuesday’s opinion merely reflects the view of a panel of three judges who sit on the Appeals Court (the vote tally was 2-1, with Judges Reinhardt and Hawkins siding with marriage equality advocates while Judge Smith wrote in dissent). Prop 8 backers will almost certainly appeal their loss, though they have the choice of appealing either to a larger panel of the Ninth Circuit Court (on which sit 11 judges) or of proceeding straight to the Supreme Court. Commentators have speculated that proponents will most likely appeal to the larger panel before requesting review by the High Court.
Once the case reaches the Supreme Court – something that is now almost a certainty – the Justices will have three choices available to them: 1) they can reverse the ruling of the lower Appeals Court and uphold Prop 8 as constitutional, something that is very unlikely given the current makeup of the Court; 2) they can employ the same narrow argument used by the Appeals Court to strike down Proposition 8; or 3) they can strike down Prop 8 with a broad ruling that simultaneously finds a constitutional right to same-sex marriage. The choice of path will undoubtedly fall on the shoulders of the Court’s swing vote, Justice Anthony Kennedy, who has written passionately in favor of LGBT people in the two landmark gay rights cases the Court has considered (Romer v. Evans 1996 and Lawrence v. Texas 2003). Although Kennedy showed restraint in Romer, his ruling in Lawrence was exceptionally broad, overturning the 1986 case of Bowers v. Hardwick and striking down anti-sodomy statues in 13 states.
A broad ruling in the Prop 8 case by the Supreme Court, along the lines of Lawrence, could legalize same-sex marriage across the country, sticking down anti-gay marriage laws in 37 states and potentially invalidating the federal Defense of Marriage Act in one fell swoop. A narrow ruling along the lines of Tuesday’s Ninth Circuit opinion, by contrast, would only strike down Proposition 8 in California and, presumably, Amendment 1 in Maine – both of which stripped gay people of their right to marry after they had enjoyed the right for a brief interim period.
Several factors will work to determine which path the Supreme Court will take. Perhaps the most significant, however, will be the amicus briefs submitted to the Court by marriage equality advocates. Such briefs assist the Court in reaching an opinion and are typically submitted by advocacy groups or prominent legal scholars. Concerned with a serious public backlash if the Court rules broadly in favor of same-sex marriage, gay activists may purposefully submit briefs that push the Court to issue a narrow ruling. In the wake of the broadly reasoned Lawrence case, for example, state legislatures across the country moved with great speed to pass constitutional amendments and statutory enactments prohibiting same-sex marriage. For this reason, there is worry that another broadly reasoned ruling may do more harm than good and may lead the 37 states that currently reserve the designation of marriage for heterosexual couples to push for a federal constitutional amendment barring gay marriage across the country.
Personally, I am hoping for a broadly reasoned ruling. The threat of amendment to the Federal Constitution is one that should not be taken seriously. Although the number of states that have already prohibited same-sex marriage,37, is perilously close to meeting the threshold required for ratification of a constitutional amendment,38, these are not the only votes that matter. Before such an amendment could be sent to the states, it would require the approval of two thirds of both chambers of Congress. The likelihood of securing such a large swath of votes in both chambers of Congress is, in my view, a near impossibility. Moreover, the other track available for constitutional amendment, which bypasses Congress and instead calls for state constitutional conventions, has never been used in this nation’s 230-year history. There is no reason to suppose a federal marriage amendment would prove the exception.
What is more, the idea that a state-by-state push for gay marriage represents a long-term strategy for equality is absolute nonsense. In a couple of years, campaigners for marriage equality will exhaust the list of states that have not amended their constitutions to prohibit same-sex marriage. Once this happens, the only option left to activists will be to propose constitutional amendments that nullify the previously enacted anti-gay amendments (since courts and legislatures in states constitutionally prohibiting same-sex marriage are barred from taking up the issue). This cumbersome process will take decades, if not a generation. The reality is that, at some point, the Supreme Court will have to wield its power to strike down these state constitutional amendments if marriage equality is to be a reality across this nation in our lifetime. The question is whether that moment is now, or a couple of years from now.
Waiting for a future case is risky business. There are essentially five votes on the Court right now sympathetic to marriage equality. These votes, however, are not the votes of young justices. In particular, gay activists may soon lose the vote of Ruth Bader Ginsburg who is quickly approaching retirement. If a more conservative justice is appointed as her replacement, the opportunity to legalize same-sex marriage nationally will be lost for quite some time. Marriage equality is an issue that should be resolved now. To this end, lawyers in the Prop 8 case, as well as groups submitting amicus briefs, should press the Supreme Court for a broadly reasoned opinion. Suggesting we wait a few more decades before fully pressing the Court on this matter is a luxury only the young have. For the generation of gays and lesbians who rioted in front of Stonewall in 1969 and who have purchased progress with their blood and sweat, there is no more time. If marriage equality is to be a national reality in their lifetime, the Supreme Court must decide on the matter sooner rather than later. And if that means an intense public reaction, so be it.
Photo Credit: Episcopal Digital Network