The Ninth Circuit Court of Appeals did not establish a right to same-sex marriage on Tuesday. Indeed, in its decision in Perry v. Brown, a panel of three judges from the Ninth Circuit did not even weigh in on the question. The majority went so far to explicitly state that “we express no view” on whether “same sex couples have a fundamental right to marry.”
Instead, its holding was startlingly narrow and addressed the “unique and strictly limited effect of Proposition 8 ... on narrow grounds,” those being simply that the legal same-sex unions could not be stripped of the title of marriage. But these narrow grounds still did not fall to the level of legal nitpicking. The court found something striking in that Proposition 8 “with[drew] from a disfavored group the right to obtain a designation with significant societal consequences.” Thus, it ruled that the law “operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships.” Therefore, Proposition 8 “violates the Equal Protection Clause” of the 14th Amendment.
In its decision, the court found that the designation of “marriage” awarded “a societal status that affords dignity to those relationships.” It did not matter that Proposition 8 did not affect the accompanying rights with that status. The majority emphasized the special nature of the word “marriage,” citing sources as varied as Groucho Marx, Frank Sinatra, and “a stadium Jumbotron.” After all, as the majority opinion elaborated, “had Marilyn Monroe’s film been called How to Register a Domestic Partnership With a Millionaire, it would not have conveyed the same meaning.”
What was most portentous about this finding was the Ninth Circuit’s majority likened it to a Supreme Court case from 1996, Romer v. Evans. That case was decided by a margin of 6–3 by the court, with Justice Anthony Kennedy, the swing justice, writing the majority opinion. In Romer, the Supreme Court overturned a Colorado law enacted via referendum, which forbade any jurisdiction in the state from prohibiting discrimination based on sexual orientation. Kennedy found the law to be “unprecedented in our jurisprudence” and that it had “no proper legislative end” but rather simply “classifies homosexuals ... to make them unequal to everyone else.”
The Ninth Circuit held that “Romer ... controls where a privilege or protection is withdrawn without a legitimate reason from a class of disfavored individuals, even if that right may not have been required by the Constitution in the first place.” It found Proposition 8 to be equivalent to Romer, noting that it “enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.” It served “no independent purpose” and thus could not be upheld, as it was simply “a classification of gays and lesbians undertaken for its own sake.” However, the opinion did take pains to note that similar legislation, more carefully worded and less absolute than Proposition 8, might still pass constitutional muster.
The Ninth Circuit found that Proposition 8 “enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.”
Tuesday’s decision was not unanimous. A dissent, written by N. Randy Smith, a judge from Idaho appointed by George W. Bush, disagreed with the majority decision about the constitutionality of Proposition 8. (Other issues in the case on which all three judges agreed were the technical legal issue of standing and whether the federal district court judge who originally heard the case should have recused himself. Neither are particularly interesting or controversial.) Smith’s dissent disagreed with the majority on the sole issue of whether there was a “rational basis” for California to enact the law.
Smith found that Proposition 8’s burden on gays and lesbians was dissimilar to that imposed by the Colorado law invalidated in Romer. To Smith, the Supreme Court’s opinion in Romer was about a law motivated by “animus alone.” It didn’t matter if Proposition 8 was motivated in part by animus as long as there was a “valid rational basis” behind it as well. In his dissent, he found that there could be rational reasons for the law on the basis of preserving “responsible procreation” and encouraging “optimal parenting.” It wasn’t that Smith thought Proposition 8 to be the best means of accomplishing this; he just thought that there was some “rational relationship” that warranted judicial restraint under the circumstances.
The decision in Perry v. Brown will almost certainly not be the landmark case that decides whether bans on same-sex marriage are ever constitutionally appropriate. After all, there aren’t any other states that have enacted and then prohibited gay marriage. Further, the decision is tailored so narrowly that, were it legislation, it would be a classic “redheaded Eskimo.” The court’s holding doesn’t even change the rights that same-sex couples in California receive under law; just the legal name that bundle of rights receives. But this holding does serve as yet another step toward the eventual enshrinement of same-sex marriage as a constitutionally protected right. It creates persuasive precedent that bows to the opinion of Kennedy, who is expected to be the pivotal vote when the Supreme Court eventually hears a case on same-sex marriage. Most of all, it will shape the legal and political debate on same-sex marriage for months, if not years, to come.