Prop 8: The Constitution as a One-Way Liberal Ratchet

Troy, beat me to the punch (see below).  But since I won’t be on Law Talk, let me offer a few quick observations.

As I said yesterday, my expectations were low.  The opinion is written by Judge Stephen Reinhardt, one of the most liberal judges in America, who has twice declared the Pledge of Allegiance unconstitutional, most recently in 2010, describing the Pledge as a system of state “indoctrination” of religion.  Also, as KC commented yesterday, this decision is probably an interim step before SCOTUS weighs in — quite possibly before the 2012 election (Ed Whelan at Bench Memos agrees).  If that happens we’ll have the perfect trifecta this summer and fall: ObamaCare; the Arizona Immigration Law; and Prop 8!

But anyway. The decision pretends to be a narrow one.  Because California had previously allowed gays to marry, and because the Domestic Partnership law grants equivalent rights to same sex couples, the State cannot now take rights away from homosexual couples.  The Court leaves open the (hypothetical) possibility that a State that never allowed gays to marry could continue to restrict marriage to heterosexual couples. On this reasoning, the Constitution is a one-way liberal ratchet; once a State confers a “right” then the People can never revoke it; even if supported in two statewide referenda.  This is the same reasoning that lead the Warren Court to attempt to turn welfare benefits into a constitutional “property right” that could not be revoked without due process.

Moreover, the language of the Ninth Circuit makes it very clear that the majority (2 judges) believe that gay marriage can never be prohibited or limited.  Prop 8 does “nothing more” than strip same-sex couples of the right to use the designation “marriage” to describe their union, says Reinhardt, and there can be “no legitimate reason” for such a law, said Reinhardt.  Therefore, it is an irrational law that “adversely affects the status and dignity of a disfavored class.” 

This is poppycock on stilts. First, the law does not strip anyone of the right to use the term “marriage.” The First Amendment protects anyone’s right to refer to another person as his/her spouse, and it allows any clergyman to perform a same-sex ceremony.  The law prohibits the State from using the nomenclature “marriage” to describe a same-sex relationship. No legitimate reason?  How about: the twice-expressed opinion of the majority of California voters?  Are California voters anti-gay?  No.  The same electorate also approves of the Domestic Partnership law that guarantees all state benefits to same-sex couples. But, unlike judges, the people of California might just have a sense that the word “marriage” has cultural significance. And in their exercise of representative government, they opted to maintain the traditional significance of marriage (and no, Tommy, that doesn’t necessarily mean coverture).  

Second, the decision assumes its conclusion: that the “right to marry” is a fundamental right that belongs to all people.  Yes, California previously issued marriage licenses to same-sex couples – but why does that get etched in stone as a “right?”  State issued marriage licenses are better seen a privilege; the State can change the ground rules without violating the Constitution.

Third, if the “right to marry” applies to all consenting adults, then (caution: slippery slope alert), then I do not see any “legitimate” reason for a State to maintain laws against incest and polygamy (see the current pro-polygamy lawsuit championed by George Washington Law Professor Jonathan Turley).  Certainly, the practitioners of incest and polygamy are “disfavored” in our society.  How can we deny them their dignity?  

  1. MJMack

    What about the question of whether the traditional marriage group had standing to be heard on this issue? Did the court rule on that? I’m confused on this point.

  2. J.Voss
    Adam Freedman: The First Amendment protects anyone’s right to refer to another person as his/her spouse, and it allows any clergyman to perform a same-sex ceremony.  The law prohibits the State from using the nomenclature “marriage” to describe a same-sex relationship. No legitimate reason?  How about: the twice-expressed opinion of the majority of California voters?  … The same electorate also approves of the Domestic Partnership law that guarantees all state benefits to same-sex couples.

    Adam, Isn’t this a distinction that makes no difference? If the sets of rights are the same, what sense is there in changing the way the state recognizes it?

    Secondly, If a church (The United Church of Christ for example) recognizes SSM, can’t they argue that their First Amendment rights are violated by the state recognizing other church’s views and not their own?  Doesn’t that constitute the establishment of a national faith-policy?

    Forgive my lack of legal sophistication in terms of working, but these thoughts only just occurred to me while reading your post.

  3. tabula rasa
    Peter Robinson: What happens next?  Will this go instantly to the Supreme Court?  

    In the near term, someone could seek en banc review by the entire Ninth Circuit (relief that is rarely granted).  Given the well-known liberal bent of the Ninth Circuit, I doubt anyone thinks this would bring about a different result, so I presume it will go straight to the S. Ct.   Given the nature of the case and the different conclusions reached by other courts, I can’t imagine the Court would not take the case.

    A question for Adam:  Maggie Gallagher characterized Justice Smith’s dissent as “timid.”  I read it a bit differently.  He certainly ticked off a straight-forward legal analysis that leads to upholding the citizens’ vote, but he did not take the opportunity to throw some Scalia-like gas on the fire.  Some judges can do that–most don’t do it effectively.  My impression is that he decided to take a pure legal analysis and avoid the pyro-technics.  In the end, I don’t think it matters.  The Supreme Court will do its own analysis, and the tone of the dissent will be irrelevant.

  4. AmishDude

    I want to congratulate this 3-judge panel for disenfranchising millions of black and Hispanic voters who voted for Proposition 8.

  5. AmishDude

    Certainly, the practitioners of incest and polygamy are “disfavored” in our society.  How can we deny them their dignity?

    Focus on polygamy.  I am going to tell you what will happen, a Muslim will emigrate to the US.  Maybe as a refugee or something. He will insist on bringing his two wives because of some humanitarian concern and for some convoluted reason, they have to both remain married to him.

    But in reality, the advocates of issuing licenses to same-sex relationships see no problem with plural marriage.

  6. Adam Freedman
    C
    tabula rasa

    Peter Robinson: What happens next?  Will this go instantly to the Supreme Court?  

    In the near term, someone could seek en banc review by the entire Ninth Circuit (relief that is rarely granted).  Given the well-known liberal bent of the Ninth Circuit, I doubt anyone thinks this would bring about a different result, so I presume it will go straight to the S. Ct.   Given the nature of the case and the different conclusions reached by other courts, I can’t imagine the Court would not take the case· 15 minutes ago

    Agreed.  The Prop 8 supporters are apparently seeking en banc review — not clear yet if they’ll get it.  Either way, this is likely to go to the Supremes.

  7. AmishDude

    Secondly, If a church (The United Church of Christ for example) recognizes SSM, can’t they argue that their First Amendment rights are violated by the state recognizing other church’s views and not their own?

    Nope.  Recognize it all day long.  Recognize it night and day.  The state doesn’t issue a license.  That’s it. 

    The strange thing about this is that this ruling basically states that the only reason to have same-sex marriage licenses is that gays need psychological validation.  Frankly, I can’t bring myself to being so condescending, but I guess enlightened people can.

  8. Adam Freedman
    C
    tabula rasa

    A question for Adam:  Maggie Gallagher characterized Justice Smith’s dissent as “timid.”  I read it a bit differently.  He certainly ticked off a straight-forward legal analysis that leads to upholding the citizens’ vote, but he did not take the opportunity to throw some Scalia-like gas on the fire.  Some judges can do that–most don’t do it effectively.  My impression is that he decided to take a pure legal analysis and avoid the pyro-technics.  In the end, I don’t think it matters.  The Supreme Court will do its own analysis, and the tone of the dissent will be irrelevant. · 19 minutes ago

    I agree that Smith’s tone — which is fairly bland — is irrelevant.  Smith does a good job at distinguishing Romer (the Colorado case), but I did find his attempt to articulate the State’s “rational basis” to be half-hearted. He shows his cards at the end, when he argues that the burden should be on those who seek to overturn democratically-enacted laws, and the opponents of Prop 8 have not met that burden.  I think that’s a strong point, and he could have made that more prominent.

  9. tabula rasa
    Adam Freedman

    Agreed.  The Prop 8 supporters are apparently seeking en banc review — not clear yet if they’ll get it.  Either way, this is likely to go to the Supremes. · 3 minutes ago

    Adam:  Why would they seek en banc?   I can’t see how that helps them, given the ideological bent of the 9th Circuit

  10. Adam Freedman
    C
    Peter Robinson: Adam, I know you have devoted your life to it, but Dickens was right.  The law is an ass. No, wait.  Certain judges are asses. · 1 hour ago

    An excellent point on the bicentennial of Dickens birthday!  I suppose I have “devoted [my] life to it,” — yikes! 

  11. Adam Freedman
    C
    tabula rasa

    Adam Freedman

    Agreed.  The Prop 8 supporters are apparently seeking en banc review — not clear yet if they’ll get it.  Either way, this is likely to go to the Supremes. · 3 minutes ago

    Adam:  Why would they seek en banc?   I can’t see how that helps them, given the ideological bent of the 9th Circuit · 30 minutes ago

    There are some good conservatives on the 9th Circuit.  Perhaps they’re hoping that an en banc review would produce some dissenting opinions that are more robust than Smith’s. It’s better to go to SCOTUS with several appellate judges on your side, rather than just one.

  12. Joseph Stanko
    Adam Freedman: Yes, California previously issued marriage licenses to same-sex couples – but why does that get etched in stone as a “right?”  State issued marriage licenses are better seen a privilege; the State can change the ground rules without violating the Constitution.

    This narrative conveniently glosses over the fact that the state only issued marriage licenses because the state Supreme Court found a “right” to SSM in the CA Constitution.  The express purpose of Prop 8 was to allow voters to overrule the court.  Neither the voters nor the overwhelmingly liberal, Democrat-controlled state legislature have ever approved SSM in CA, it’s purely a judicial imposition.

  13. Bereket Kelile

    What’s the feasibility of breaking up the 9th circuit into 2 or 3 districts? I think this is just another example of why we need to push for that.

  14. Bereket Kelile

    I just got started on the decision and I’m a bit confused by what they say about CA giving same sex couples the right to use the ‘marriage’ designation prior to the passage of Prop 8. Or are they saying that CA did that when they started to give out marriage licenses to gay couples? If it was prior to that then why wasn’t the Domestic Partnership law struck down as unconstitutional since it only went half-way in granting them such rights?

  15. Joseph Stanko
    bereket kelile: I just got started on the decision and I’m a bit confused by what they say about CA giving same sex couples the right to use the ‘marriage’ designation prior to the passage of Prop 8. Or are they saying that CA did that when they started to give out marriage licenses to gay couples? If it was prior to that then why wasn’t the Domestic Partnership law struck down as unconstitutional since it only went half-way in granting them such rights? · 12 minutes ago

    Under the CA Family Code:

    297.5.  (a) Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses.

    That was passed by the state legislature, independent of court-imposed same sex marriage.

  16. Matthew Gilley

    I can’t remember the exact numbers, but appeals from the Ninth Circuit were a sizable portion of last term’s Supreme Court docket.  I believe that about 78% or so were overturned, which may actually be a pretty good rate for the Ninth.  The Supreme Court has many roles – interpreting the Constitution and federal statutes, resolving Circuit splits, original jurisdiction in specified matters, etc.  We should add cleaning up after the Ninth Circuit.

  17. tabula rasa

    Bereket:

    It’s not unprecedented.  It’s been a while, but within my memory, Congress created a new circuit (the 11th).  The Ninth Circuit is very large, including California, Oregon, Washington, Idaho, Alaska, Arizona, Guam, Nevada, Montana, and Hawaii (Wikipedia indicates that this includes 20 percent of the U. S. population.).  The 9th Circuit is ripe to be broken up.

  18. Cutlass
    AmishDude: The strange thing about this is that this ruling basically states that the only reason to have same-sex marriage licenses is that gays need psychological validation.  Frankly, I can’t bring myself to being so condescending, but I guess enlightened people can.

    Exactly.  To use the the court’s condescending language, psychological validation is the only possible rationale for “gay marriage.”  Given that polls have shown for years that sizable majorities of supposedly bigoted hateful Christians who opposed gay marriage are just fine with civil unions, hospital visitation, etc.  It’s all a childish tantrum over the word “marriage.”  That’s it.

    And I guarantee that within five years of the establishment of gay marriage only a tiny percentage of gays will bother to marry once it’s no longer a political statement.

    Personally, I don’t think gay marriage is the end of the world.  However, I will vehemently oppose it so long as the issue a vehicle to establish the absurd notion that sexual orientation equates a protected class and anyone who disagrees should be ostracized from the public square as a vile bigot.

  19. Cutlass
    AmishDude 

    The debate over gays has been patently absurd on so many levels.  Now, culturally we’ve moved to a point where people who want to exercise their right to live an openly homosexual lifestyle can do so without being shunned from society. That’s fantastic, and it makes me proud as an American that we can live and let live.  Gays could have easily petitioned their fellow citizens for perfectly reasonable reforms, like hospital visitation. Gays would have been just another ho-hum segment of society. 

    Instead, vicious LGBT groups had to drag everyone into this asinine national conversation about “gay rights,” poisoned with anti-Christian bigotry and vile attacks on the decency of over 50% of the nation. And it’s not just marriage. We have to ignore modern science, 100 years of psychological scholarship, and common sense to swallow the dogma that homosexuality is a biological trait on par with race – otherwise, we’re just filthy bigots. 

    It’s worth noting that Martin Luther King was ten times more respectful towards racist segregationists than the LGBT activist  are towards the average American who happens to disagree on the definition of the word marriage.

  20. AmishDude
    Cutlass

    And I guarantee that within five years of the establishment of gay marriage only a tiny percentage of gays will bother to marry once it’s no longer a political statement.· 19 minutes ago

    Actually, there are plenty of jurisdictions that have issued licenses for same-sex marriage (I’m careful to be explicit about what we’re talking about) for quite some time and after the flurry of political-statement “marriages” it’s often a casual indulgence by a couple in their 50s or older and rarely, at that.

    There used to be (still are) things called commitment ceremonies.  Basically, a gay wedding. All the trappings. Well, if issuing same-sex marriage licenses were so important, it would be easy to persuade the public (how quaint) by undergoing commitment ceremonies and registering them somewhere voluntarily.

    But this is a Leftist movement and so it’s all about cultural warfare. So we’re going to have this really unnecessary battle when I think a lot of the public was persuadable before the courts got involved.

    But make no mistake, once the courts got involved, there was no going back to persuasion.

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