The 9th Circuit, in a 2-1 decision, has struck down California's Proposition 8, which had eliminated the right of same-sex couples to marry. This is, of course, a great day for equal rights and liberty in the United States. But the particular way the court went about its ruling is a little strange -- intellectually speaking, if not legally or politically.
The first thing that needs to be emphasized about this opinion is that it did not hold that all laws barring same-sex marriage are unconstitutional. Rather, it held specifically that the decision of California voters to take away the previously vested right for same-sex couples (and only same-sex couples) to marry is unconstitutional. That California briefly legalized same-sex marriage, only to later have it stripped by referendum, distinguishes it from most states (where gay marriage has never been legal at any point in time).
This leads to weirdness part one: California spent many years prohibiting gay marriage, then briefly (through judicial decision) legalized it, then outlawed it again. But how can it be that what was legal for most of the past two decades becomes illegal based on a brief, half-year interlude?
As a matter of law, this actually isn't that difficult: the holding of the California Supreme Court established that the ban on gay marriage violated the state's constitutional guarantees -- in other words, establishing a right to gay marriage. As a matter of formal law, Proposition 8 acted to strip a particular class of citizens -- and only that class -- of rights it had previously possessed under the Constitution. That this move might be considered an expression of particularly malevolent animus, in a way qualitatively different from simply refraining from establishing gay marriage in the first place, is not hard to grasp.
The problem is that this seems to misapprehend the meaning of Prop. 8 as it reflects upon constitutional interpretation. The California Supreme Court's decision in Marriage Cases was that gay marriage was protected under various provisions of the state constitution (equal protection, fundamental rights, etc.). They held, in essence, that equal protection requires recognition of gay marriage; fundamental rights requires recognition of gay marriage. But when Californians went to the polls in 2008, they did not conceive of themselves as deciding whether or not to craft exceptions to these constitutional guarantees (equal protection, except that gay marriage can be prohibited). They thought of themselves as answering whether they believed the California courts original interpretation of these clauses was correct (does equal protection require gay marriage?). It was meant to be a signal as to their belief, not that the constitution was wrong to protect gay marriage, but that the California Supreme Court was wrong to believe that it ever did in the first place.
Now, it may be that as a matter of law this has no bearing -- judicial pronouncements of "what the law is" are authoritative, and any subsequent democratic revision or modification proceeds from there. So in that sense, the 9th Circuit got it right -- the California constitution gave gays and lesbians the right to marry, and then the people of California took it away. But it is notable what this outlook says about popular constitutionalism: it gives so little credence to popular understandings of constitutional meaning that even when they immediately reverse a judicial decision via an amendment that constitutionalized a prior doctrinal understanding of the original clause, that is coded as "changing the constitution" rather than "counterinterpretation of the constitution".
Anyway, the 9th Circuit proceeds to argue that the fact that this was California taking away a right, rather than declining to extend one, makes this case indistinguishable from Romer v. Evans. Romer was perhaps the Supreme Court's first high-profile gay rights opinion, striking down a Colorado constitutional amendment which forbade the state or localities from enacting anti-discrimination laws on basis of sexual orientation (and only that category). The law had been passed in reaction to the passage of such laws in a few more liberal Colorado cities (e.g., Boulder), and the Court found that it was effectively motivated by bare animus against gays.
There are few things that make Romer notable. First, the case does not stand for the proposition that states must have anti-discrimination protections on basis of sexual orientation. Rather, the Court's holding was that the state cannot arbitrarily pluck out a particular class of citizens and make it more difficult for them to garner the protections that others enjoyed. Second, Romer applied rational basis review, which is traditionally quite easy to meet. But Romer implies that the decision to take away a previously vested right is more suspicious (even under rational basis review) than simply not extending a right. It keys the analysis to the stripping of the right, and it is often harder to articulate a rational (non-prejudiced -- Romer and other cases establish that "animus" is not a rational basis) reason for taking the affirmative step of removing a right than it is to explain why one never bothered to grant it all. Third, Romer was a Kennedy-authored opinion, and the 9th Circuit decision is aimed like a laser at Justice Kennedy in an effort to hold his vote (or even avoid a cert grant -- I might have to dissent from Orin Kerr in calling Supreme Court review inevitable given the narrowness of this particular ruling).
In keeping with the Kennedy-focus, the 9th Circuit styled its opinion as a clean extension of Romer. But it did so through oddity #2 -- the narrowness of what Proposition 8 did. All Prop. 8 did was prevent gay couples from calling their relationships "marriage", which the court accurately described as a (quite significant) dignitary harm on gays and lesbians. By contrast, the rational bases typically offered for heterosexist marriage restrictions usually are some chatter about the state's interests in procreation and child-rearing. I think those arguments tend to be irrational gibberish anyway, but for the purposes of this case, the court simply observed that Proposition 8 had precisely no bearing on these topics. California already has well-established procedures for how gays and lesbians can conceive and raise their kids, and Proposition 8 effected those not at all. So since the only thing Prop. 8 did do was foist upon gay couples this dignitary harm, and since simply denigrating the legitimacy of gay people is not a legitimate state interest (falling under the ambit of animus), the law falls under Romer. The implication is that if California voters had done more -- for example, hinging certain childcare rights on marriage in tandem with restricting marriage to heterosexual couples -- it would have been more likely to survive rational basis review (or at the very least, force the Court to make the affirmative constitutional case for gay marriage nationwide).
Again, the court's analysis isn't necessarily wrong here, so much as illuminates an oddity in how broader constitutional doctrines manifest. Judicial supremacy means that we can't even conceive of a constitutional amendment that is meant to correct a "wrong" constitutional interpretation -- there is, in this view, no such thing as a "wrong" constitutional interpretation except when the courts themselves say so. Rational basis means that legislatures need to more aggressively target the rights of unpopular minorities, because if they don't, it is easier to say they acted out of animus.
I should stress that I think that the constitutional case for gay marriage is more or less a slam dunk, and in that sense the 9th Circuit opinion definitely reaches the right outcome. But in its (tactically quite wise) efforts to fit itself within the narrowest box possible, it helps illuminate certain strange elements of our constitutional order which I felt compelled to point out.
Tuesday, February 07, 2012
The Weirdness of the Prop. 8 Decision
Posted by David Schraub at 1:43 PM
Labels: California, constitution, gay marriage, law
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I should have known to come here first, but instead I spent an embarrassing amount of time dithering on the internet trying to figure out how the 9th circuit decided based on state procedural posture. Do you think there's any chance that, since it's similar Romer, the Court will deny cert?
Some chance, based on two factors.
1) Not the cleanest vehicle for deciding this issue -- SCOTUS might want to wait for a clearer shot.
2) My sentiment is that the conservatives want to decide this case sooner and the liberals later (longer we wait, less controversial a pro-gay marriage ruling is). So the four votes for cert are more likely to come from conservatives rather than liberals. But conservatives might be skittish about bringing this case up, since the lower court opinion is aimed so squarely at Justice Kennedy they might not feel confident that they'll be able to hold his vote.
that is coded as "changing the constitution" rather than "counterinterpretation of the constitution".
Well, the ballot summary said Prop 8 "changes the California Constitution to eliminate the right of same-sex couples to marry in California," and it was a constitutional amendment, so it did literally change the constitution by adding another provision. I don't get why seeing Prop 8 as "changing the constitution" is problematic. Arguably the 16th Amendment merely rebuked the 5 justices in the majority of Pollock v. Farmers Trust for their interpretation of the Constitution, but it's nonetheless generally perceived as "changing the Constitution."
Or to use a more-broadly-deemed-erroneous-ruling: the 14th Amendment reversed the Supreme Court's decision in Dred Scot that black people aren't citizens, and that decision certainly was controversial at the time and a contradiction of decades of precedent, wherein the distinction had always been between slave and non-slave, not black and white. But the 14th Amendment still changed the Constitution -- if you believe Amar, revolutionized it.
Romer was perhaps the Supreme Court's first high-profile gay rights opinion, striking down a Colorado constitutional amendment which forbade the state or localities from enacting anti-discrimination laws on basis of sexual orientation (and only that category).
I don't recall if Romer itself noted this, but actually Amendment 2 didn't bar enacting anti-discrimination laws on the basis of sexual orientation. Instead it said: "No Protected Status Based on Homosexual, Lesbian, or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing."
This bars only prohibiting discrimination against gays and bisexuals -- it does NOT bar prohibiting discrimination against straight people (lest the gays take over Aspen, I suppose). But it's indicative of the degree to which the Amendment truly was motivated by anti-gay animus, as opposed to some libertarian desire to avoid having yet another basis on which people were forbidden to discriminate.
As far as I can tell, Evans v. Romer struck down Amendment 2 for failing the rational basis test – by altering the rational basis test. 1) The Court acknowledges legitimate governmental interests – defending freedom of association, allocating resources used to guard against claims of undue discrimination. 2) Reducing the scope of civil rights for homosexuals bears a rational relationship to these interests. 3) Reducing the scope of civil rights for homosexuals is motivated by animus toward homosexuals. But animus is not relevant to the rational basis test.
In short, government cannot be constrained from implementing policies that advance legitimate governmental purposes simply because those policies also coincide with popular animus. If government adopted a policy of quarantining people with a highly contagious disease, would this policy pass rational basis review? Would the answer to that question depend upon whether the people who had the disease also happened to be homosexuals?
Thus, I read the Romer decision as a political compromise. A more forthright decision would have recognized homosexuals as a protected class entitled to heightened scrutiny, and then concluded that Amendment 2 failed the heightened scrutiny test.
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