Tuesday, February 7, 2012

Ninth Circuit Rules Prop. 8 Unconstitutional

The opinion of the Court may be downloaded here (it's 133 pages). Judge Reinhardt (one of the Ninth Circuit's most liberal judges) wrote the majority opinion that holds California's people could not constitutionally take away the designation of "marriage" for same-sex unions once the California Supreme Court had declared that the State could not constitutionally ban them. Judge N. R. Smith dissented from that holding (his opinion begins at page 90 of the download), but concurred with the majority in finding that the proponents of Prop. 8 had standing to appeal, and in holding that Chief District Judge Vaughan Walker did not have to withdraw from the case because he himself is in a same-sex relationship.

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.


  1. Where did they find these judges? It is possible to remove them?


  2. DPK, 80-year-old Judge Stephen Reinhardt is one of the longer-serving judges on the Ninth Circuit, having been appointed by President Carter in 1980. He is now on senior status, meaning that he woks only when he wants to. He (and any of his colleagues) could be removed only upon impeachment by the House and conviction in the Senate for "treason, bribery, or other high crimes and misdemeanors."

  3. Dear A.S.,

    What do you estimate the probabilities are of the U.S. Supreme Court eventually taking an appeal on Prop. 8?

    I have read some L.A. Times articles that the 9th court wrote the ruling in such a way that it will make it problematic for SCOTUS to take the case on appeal. What do you think? Do you concur with the L.A. Times?

  4. TU&D, I think the probabilities of the Supreme Court taking this case (if only to vacate the decision on the ground that the case does not present a substantial federal question) are high indeed.

    Only four votes are necessary to grant review, and I think Justices Roberts, Alito, Thomas and Scalia are fully capable of deciding that.

    Such a grant of review would then bring Justice Kennedy into play, for any ultimate decision on the merits. The decision as crafted by Judge Reinhardt is designed to throw Justice Kennedy's majority opinion in Romer back into his face, and on this occasion, I will go out on a limb and predict that Justice Kennedy will not like that gesture. Instead, I think he will use the occasion of this case to tone down his dicta in Romer, in order to make a "rational basis" review of the Ninth Circuit's judgment possible.

    And I do not see the Ninth Circuit's current decision as surviving such "rational basis" review, for the reasons stated in my post. Perhaps the en banc panel will head off any such scenario, by reversing Judge Reinhardt's ruling, in an attempt to forestall another affront to the Ninth Circuit. Even if that does not happen, however, I expect (barring personnel changes) the Supreme Court to reverse the decision by the spring of next year.

  5. Dear Mr. Haley,

    You write: "This decision surely marks the height of his hubris." Alas, I fear that your confidence as to the upper limit of his hubris may well prove unfounded unless he is sooner called to his eternal reward.

    Pax et bonum,
    Keith Töpfer