It is difficult to stay detached when reading Judge Reinhardt's opinion, because he constantly claims he is sticking to a very narrow ground of decision, while he goes out of his way to make sweeping pronouncements:
By emphasizing Proposition 8's limited effect, we do not mean to minimize the harm that this change in the law caused to 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 couple desiring to enter into a committed lifelong relationship, a marriage by the name of 'registered domestic partnership' does not. . . .There is nothing like assuming the very proposition that is to be decided, eh, Judge Reinhardt? ("'[M]arriage' is the name that society gives to the relationship that matters most between two adults -- sure.) Why not write: "'[M]arriage' is the name that society gives to the relationship that matters most between a man and a woman"? Is that because you could not then so easily jump to the conclusion which you assumed in your reasoning?
The decision hangs heavily on Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court case which found Colorado's Proposition 2 (repealing all laws forbidding private discrimination on the basis of sexual orientation) unconstitutional. But as the dissent points out, far more relevant is the Supreme Court's summary dismissal of the appeal in Baker v. Nelson, 409 U.S. 810 (1972) for want of a substantial federal question.
Baker was an appeal from a decision by the Minnesota Supreme Court upholding a statute which prohibited marriage between two people of the same sex. If the Supreme Court could not find that that case presented a substantial federal question, what business do the federal courts have adjudicating the constitutionality of California's Proposition 8?
Judge Reinhardt attempts to distinguish Baker (opinion, p. 47) on the ground that his opinion has to do not with the constitutionally of banning same-sex marriage per se, but rather the constitutionality of taking away from a disadvantaged group a right which they had been given to enjoy by the State's highest court. Just to state the proposition the way he views it is to show how contorted and strained is his decision.
For Judge Reinhardt, gay rights are a one-way ratchet. You might not constitutionally have to grant them in the first place, but once you do, you cannot take them away without singling out gays by definition. And to do so in legislation is simply unconstitutional.
Let us apply this reasoning to a hypothetical case in which a State's highest court, on the basis of the California Supreme Court's decision before Prop. 8, declared that the State could not deny marriage to more than two people. If the people of that State were subsequently to adopt an initiative overruling that decision, then according to Judge Reinhardt, the initiative would be unconstitutional because it singled out polygamists for discrimination. Or again, if a State passed legislation granting sixteen-year-olds the right to vote, Judge Reinhardt would forbid them from ever raising the age to 18 again.
In other words, Judge Reinhardt's rationale for striking down Prop. 8 proves too much. If federal courts have no constitutional interest in the traditional state domain of marriage, how can they presume to control a State's definition of that term? The issue is not whether Prop. 8 discriminates against gays, if marriage is defined traditionally. The term "adult", by definition, discriminates against minors. And the term "offspring" must likewise discriminate against gay couples. If "discrimination" is necessary to define the outlines of a concept, then that kind of "discrimination" cannot be unconstitutional.
The Ninth Circuit is the court whose decisions are most frequently reversed by the United States Supreme Court, and Judge Reinhardt is its most frequently reversed judge. But that does not stop him from continuing to try to enact his liberal views into rules that all must observe. This decision surely marks the height of his hubris.