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?