The Panel Decision

When a big case is released, I want to read it right away. But unfortunately, courts release big cases at precisely the time lawyers are working. So it’s taken me a day to digest this latest and possibly penultimate round of litigation in Perry v. Brown, the Brown v. Board of Education of our generation. Now that I have, I can offer that digest here.

Yesterday’s opinion strikes me as a remarkably defensive decision. The panel reached its conclusion 2-1, and is quite conscious of the fact that it will not be the final word on the issue. The author of the principal opinion, Circuit Judge Stephen Reinhardt, is both a powerful writer and conscious of his role as a liberal firebrand on the bench, very possibly the personification of conservative political agitation against the Ninth Circuit specifically and the judiciary generally. He’s an old lion (a Carter appointee), and it’s simply not in his personality to apologize or take a defensive posture, which is why the position he stakes out here seems so odd.

Logically, Judge Reinhardt’s opinion moves forward in three steps: first, he determines whether there is a valid case for the court to decide at all (yes); second, he searches for the narrowest ground upon which the case could be decided (finding it in an argument offered by Therese Stewart on behalf of the City and County of San Francisco, one of my professional heroes for prevailing in The Marriage Cases); and third, he tries to cleave the case as closely as he can to what he obviously anticipates to be the critical vote on the Supreme Court. And while I refer to the decision as Reinhardt’s, I should note that Senior Judge Michael Hawkins, a Clinton appointee, signs off on that opinion in full, so Judge Hawkins owns it as much as does his somewhat more prominent colleague.

Bush II appointee Circuit Judge N. Randy Smith concurs in part and dissents in part. One of the two things Judge Smith concurs with the majority of the panel addresses the issue of the standing of Proposition 8’s proponents to argue for the constitutionality of the law they wrote.

 

Standing In The State’s Shoes

I applaud the Court without reservation on its handling of the first step.

Judge Reinhart has long voiced his dissatisfaction with restrictive rules of standing in case law prohibiting the courts from reaching the merits of a dispute, and he finds with relative ease the ability of the proponents to step into the shoes of the State of California and offer a full-throated defense of the law.

I applaud this because it is a fundamental component of fair decision-making. Were this issue to have been decided the other way, then the hotly-contested issue of same-sex marriage would have been decided by default, and that would justifiably have left a very large number of people who care about the issue feeling completely disenfranchised and voiceless in the process.

Courts are inherently non-democratic institutions, and it’s already a disenfranchising procedure to invalidate a ballot proposition submitted to the electorate generally. So it strikes me as critical that someone offer the strongest defense of Proposition 8 that could be formed — when critics of the opinion step forward, as they inevitably will, they should not be able to offer the criticism that what they had to say was not heard and responded to. Let them instead say that the court did not respond to their arguments appropriately.

It’s pretty easy for the entire panel to find standing because the panel earlier in the course of the litigation took the step of referring the matter to the California Supreme Court for an advisory opinion. And as is already known, the California Supreme Court previously announced that under state law, if the Governor and Attorney General decline to defend the validity of a ballot proposition, the proponents of the proposition who actually wrote the law and undertook the effort to sponsor its appearance on the ballot may step forward and defend it in the place of the elected state officials who would normally be charged with that duty.

The only thing for the Ninth Circuit to do is to decide if, given that the proponents have standing as a matter of state law, that also provides standing under Article III of the Constitution. Given that the grant of standing is governmental in nature, the Court says that yes, there is standing:

It matters not whether federal courts think it wise or desirable for California to afford proponents this authority to speak for the State, just as it makes no difference whether federal courts think it a good idea that California allows its constitution to be amended by a majority vote through a ballot measure in the first place. Cf. Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912) (holding nonjusticiable a Guaranty Clause challenge to Oregon’s initiative system). The People of California are largely free to structure their system of governance as they choose, and we respect their choice. Slip op. at 27.

Now, if that’s not a backhanded criticism of California’s initiative system, I don’t know what is. It’s one that I think deserves some careful consideration, too — the majority threshold for amending the state constitution does strike me as a rather casual way to approach the highest law of the state.

 

What’s In A Name?

The core substantive issue is the focus of a lot of gyrations by the panel, which takes a very different tack on the matter than did the district court.

The District Court found that California’s domestic partnership law mostly gave the same rights as marriage, but offered a lengthy note finding eight areas of law where domestic partnership was not legally the equivalent of marriage. For instance, in California you can get a confidential marriage license, but there is no confidential domestic partnership. Incorrectly, in my opinion, Judge Reinhardt blows straight past the legal distinctions between domestic partnership and marriage and instead asserts:

In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partenrships, and with it the State’s authorization of that official status and the societal approval that comes with it. … Before Proposition 8, California granted gays and lesbains both the incidents and the status and dignity of marriage. Proposition 8 left the incidents but took away the status and the dignity. Slip op. at 37, 40.

As I note above, that’s not precisely true even though the incidents of marriage that are left out of California’s domestic partnership law are pretty minor. While Judge Reinhardt might have been right to say that domestic partnership is substantially the same as marriage under state law, it is not the same legally.

I think it’s worth pointing out here a deliciously pithy argument offered yesterday on these pages by my frequent sparring partner DensityDuck:

…[A]pparently, the fact that a hetero[sexual] Civil Union would be called “married” and a homo[sexual] Civil Union would be called “Civil Union” is a grievous violation of human rights that prevents those people from ever being happy.

I like this argument (although I don’t agree with it) because it’s so concisely put. If Judge Reinhardt were 100% correct that a domestic partnership and a marriage provided precisely the same legal rights in every respect, why should anyone care what label gets attached to that relationship by the state? My marriage to my wife would be emotionally the same whether it’s called a “marriage,” a “civil union,” a “domestic partnership,” “dating,” or a “zzyzx.” We’d be happy with one another, we’d work together to resolve the inevitable differences that arise between two people, we’d pool our finances and resources and efforts, to create a shared household, we’d have sex and children if we chose to, and all the rest. We could call each other whatever names we wanted, and ask the same of our friends. Our gay neighbors could in theory have the same set of rights and the same happiness with one another and indeed they are by all appearances just as happy as we heterosexuals — and if the substantive rights our gay neighbors enjoy really were the same as my wife and I, then isn’t the state treated the same-sex couple and the opposite-sex couple equally?

There is some heft to that argument and indeed, I once felt that way myself.

So Reinhardt acts as though it is a truly “separate but equal” situation, because his reasoning is based on the idea that the entire point of Proposition 8 was to deny the use of the word marriage to same-sex couples. Far from domesticating the issue of nomenclature, Reinhardt thinks it is of tremendous importance:

…[W]e emphasize the extraordinary significance of the offical 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. Slip op. at 37.

And he goes on to offer a decidedly strange cultural survey of why this particular word matters:

We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. Groucho Marx’s one-liner, “Marriage is a wonderful institution … but who wants to live in an institution?” would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permannce of the marriage relationship. Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even through the underlying drama for same-sex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships. See Knight v. Super. Ct., 128 Cal. App. 4th 14, 31 (2005) (“[M]arriage is considered a more substantial relationship and is accorded a greater stature than a domestic partnership.”); cf. Griswold, 381 U.S. at 486. … We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. Slip op. at 38-39.

I used to think that the name alone was not of significance; I changed my mind on that point several years ago. Two out of three judges on the Ninth Circuit agree. But this seems like an odd way to go about demonstrating it — nearly all of the cultural evidence cited are jokes disparaging marriage, an institution Judge Reinhardt had previously gone to some pains to indicate was vested with unique dignity, status, and prestige. I think I can do a better job than Judge Reinhardt did here to address the argument raised in such a wry and clever manner by our commenter.

After all, the prestige, the status, the dignity is something separate and distinct from the internal content of a relationship. When my neighbor introduces his “husband” at a party, that does carry more social weight than if he introduced his “partner.” They still love each other the same no matter what label you put on their relationship, but words like “husband,” “wife,” and “spouse” convey to third parties a degree of permanence, commitment, and significance that words like “partner,” “significant other,” and “longtime companion” do not and probably cannot, at least not within our existing language and culture.

If I told you that I’ve lived with my girlfriend for nine years and no longer could segregate our individual possessions from one another’s, and we’ve owned two houses together, maintained a joint checking account, agreed that we would be mutually responsible for one another’s debts including those that existed before we formed our romantic relationships, and had moved across the country with one another twice in our time together, well, all of that would be true. But the very first thing you’d be thinking is “Why the hell aren’t you two married yet?” You might wonder why a boyfriend or girlfriend would assume all of those burdens and obligations, but you wouldn’t bat an eye at a husband or a wife would do so.

When a same-sex couple, due in part to the poverty of the English language and in part due to the structure of our culture, is forced to use either sterile neologisms like “civil union” or qualitatively downgraded phrases like “boyfriends,” the social currency of the relationship is diminished. And since the state is, for better or worse and probably unavoidably so, in the business of handing out marriage licenses, the state cannot extricate itself from the issue of the nomenclature attached to the legal statuses it confers on relationships. The only other alternative is to abolish marriages completely and have everyone be single, leaving social pair-bonding to be a strictly social matter of no legal or economic significance whatsoever. We could do that, I suppose, but it would involve a degree of social engineering for which I doubt anyone has any appetite. Certainly not SSM advocates — SSM isn’t about taking anyone else’s marriage away from them, it’s about creating more marriages.

I think it’s a shame that Judge Reinhardt chose to express the social and cultural value of marriage in such a sarcastic, pop-culture manner. But that’s what he did. He also mentions on two occasions responses to requests for admissions made by the Proponents, who stated in evidence “Proponents admit that the word ‘marriage’ has a unique meaning” and “…that there is a significant symbolic disparity between domestic partnership and marriage.” I might have rested there on that point since under the Federal Rules of Civil Procedure, those admissions are dispositive.

And I also think Judge Reinhardt was wrong to ignore the admittedly minor differences between marriage and the watered-down alternative available under California law. But the destination he reached that way is nevertheless correct: the nomenclature is inherently and independently significant.

 

Take-Away Isn’t Keep-Away

The major intellectual work done by the majority opinion is an effort to make the facts, history, and procedural posture of Perry v. Brown adhere as closely as possible to the facts, history, and procedural posture of Romer v. Evans, 517 U.S. 620 (1996).

Now, Judge Reinhardt can count noses on the Supreme Court as well as anyone. Looking at, for instance, Lawrence v. Texas, 539 U.S. 558 (2003), and see who voted for what result. He can see patterns of the newer Justices and make projections like the rest of us. And doing that, he would use the same calculus and come up with the same projections as everyone else: when faced with the question “Does Proposition 8 violate the Federal Equal Protection Clause?” pretty much every court-watcher will predict that assuming even halfway intelligent arguments are offered on either side, Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito will vote “no,” and that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan will vote “yes.” That leaves Justice Anthony Kennedy, who might vote either way.

So if you thought that there was an equal protection violation in this case, and you knew that Justice Kennedy was the person you had to persuade, you would custom-tailor your argument to him. Given that, you couldn’t possibly do better than to point to Romer. Justice Kennedy has indicated in the past that he considers Romer to be one of the high points of his career. He is particularly proud of that opinion, the reasoning in it, and the effect that it has had on both the law and the culture. For a good discussion of Justice Kennedy and his view of his own career, I commend to you readers both David Savage’s Turning Right: The Making Of The Rehnquist Supreme Court and Jeffrey Toobin’s The Nine: Inside The Secret World Of The Supreme Court.

And the congruence with Romer is apt and fortunate for Reinhardt as an advocate for his own affirmance, because the Perry case involves the use of an initiative to take away a right that was previously held by the aggrieved class. Judge Reinhardt goes to a considerable effort to draw parallels between Romer and Perry. He notes that in both cases, there were rights granted to gays and lesbians, in Romer by municipal ordinances and in Perry by the California Supreme Court’s interpretation of the equal protection clause in the state constitution. In both cases, a statewide ballot initiative amended the state’s constitution to find a right of same-sex couples to marry. In both cases, no rational purpose to any legitimate state objective was found to justify the ordinance, leaving only invidious discrimination enshrined into law as the motive for enacting the retraction of legal rights. These are significant similarities between the two cases, and Justice Kennedy, the likely swing vote, is well-entrenched in the defense of that case (having endured some antagonism from his Brother Justice Scalia with resepct to that very opinion).

This comparison has some immediate effect at the Ninth Circuit level in this case. Dissenting Circuit Judge N. Randy Smith is evidently moved by the framing of the procedural issues sufficently to offer his own rationale as to why this case is different from Baker v. Nelson, 409 u.S. 810 (1972), a case which shortly followed Loving v. Virginia, 388 U.S. 1 (1967). In Loving, the Supreme Court held that a state ban on interracial marriage violated the Equal Protection Clause of the Fourteenth Amendment. In Baker, two men unsuccessfully applied for a marriage license and cited the rationale in Loving to claim another Equal Protection violation. The Supreme Court denied review, “for want of a substantial federal question.” If that had happened today, it would have no precedential effect, but under the rules of the court applicable in 1972, this counted as a precedent and therefore still does today.

So Judge Smith felt it necessary to distinguish Perry from Baker, and it’s clear enough from reading his dissent that he’d paid close attention to the way the majority framed the history of same-sex marriage in California. Judge Smith points to some of the same events that Judge Reinhardt does in making that distinguishing, and while it’s framed as a dissent, he concurs with his colleagues that he does have to reach the merits of the case. I also wonder if Judge Smith is trying to indicate to Justice Kennedy that maybe he needs to take a closer look at the Baker case and see if perhaps he is bound by it, although given that he too distinguishes Perry from Baker I think “that would be some serious 11th-dimensional chess.” But in any event, it does mean everyone on both sides of the issue must address the merits of the issue. There should be no more hiding behind procedure or formalities.

It’s important for the future, because it means that the Equal Protections claim really does lack any substantial cover from Baker. Even a judge who would have ruled in the Proponents’ favor found himself having to deal with the issue on its merits rather than by citing a precedent completely devoid of reasoning or thought. Now, it shouldn’t be that hard for an advocate in favor of Proposition 8 to distinguish Perry from Romer. It’s not an inconsiderable argument to note that except for about five months in 2008, there was never same-sex marriage in California, and a substantial effort by the Legislature to create a parallel and ultimately nearly equal legal institution.

Although Judge Reinhardt indicates that the voters were reacting to The Marriage Cases, taking away a right recognized by the California Supreme Court, he ignores completely the fact that the proponents of Proposition 8 wrote their amendment to the state’s constitution, and underwent the considerable trouble and expense to get it put on the ballot, well before The Marriage Cases were decided and at a time that the outcome to those then-pending legal actins was far from clear. It is at best incomplete and at worst inaccurate to say that Proposition 8 was a reaction to The Marriage Cases. The proponents were trying to play keep-away, to prevent any marriage licenses from ever issuing. It’s only because of the convening accidents of the electoral cycle and the mechanics of putting a proposition on California’s ballot, and the slow, unpredictable schedule of the California Supreme Court, The Marriage Cases were handed down and marriage licenses issued before the voters could decide Proposition 8.

It’s also worth remembering that based on the reasoning in The Marriage Cases, the right to same-sex marriage was there all along, even though no such licenses were issued before 2008 and even though it is conceded that at the time the equal protection langauge was adopted, no one would have concieved of such a thing or interpreted the language that way.

 

For Locals Only?

The Romer argument only works if the ballot initative plays take-away. It doesn’t apply at all if the voters were playing keep-away. By placing so much intellectual weight on the fact that there was once same-sex marriage in California (for however briefly, and whether or not you buy the idea that same-sex marriage was always a right in the California Constitution), Judge Reinhardt is limiting the scope of the holding to California’s circumstances only. It’s possible that the case would only apply to California at all, although in theory it might apply to other states in which there was a right to same-sex marriage recognized and then subsequently revoked by way of initiative or legislative action:

The context matters. Withdrawing from a disfavored group the right to obtain a designation with significant social consequences in different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is. … Whether or not it is a historical accident, as Proponent argue, that Proposition postdated the Marriage Cases rather than predating and thus preempting that decision, the relative timing of the two events is a fact, and we must decide this case on its facts. Slip op. at 41-42.

So far as I can tell, the only other state where same-sex marriage was recognized and then revoked is Maine. In theory, the scope of the ruling might apply to some other state which presently has same-sex marriage but might repeal it — Iowa, New Hampshire, Vermont, Massachusetts, New York, and Connecticut. What will happen alter this month in the New Hampshire state legislature will determine whether same-sex marriage gets repealed there or not, and if it does, then New Hampshire would be affected by this reasoning too.

But the holding of this case would not apply to any state which has never actually issued a same-sex marriage license. Most of the states in the United States fall into this category. This may deprive the plaintiffs of the ability to find a right to same-sex marriage in the Fourteenth Amendment, at least in this case. This reasoning almost forces an incremental approach to the national adoption of same-sex marriage, rather than the sweeping sort of pronouncement that Brown v. Board of Education had as to racial segregation.

Why would Reinhardt do this? To make the pill easier for opponents of SSM to swallow? As a political matter, it’s not as bad for an SSM opponent in, for instance, Texas to accept that okay, there’s SSM in California but here in Texas we don’t have it because we decided that for ourselves. Perhaps this was something Judge Reinhardt was thinking about, but I think his real aim here was to make it easier to be affirmed by the Supreme Court by way of locking down Anthony Kennedy’s vote. This is not a guarantee; Kennedy’s vote is not certain here because as much as Kennedy personally seems sympathetic to the legal and political claims of homosexual Americans, he is also cautious in his approach for the most part and sensitive to criticism aimed his way after opinions like Romer and Lawrence. And it is not a guarantee that Stephen Breyer, who is particularly deferential to direct democracy, would agree either.

But SSM opponents can take heart that this opinion from the Ninth Circuit appears to be of limited scope. If it is affirmed, there would be no holding that the Fourteenth Amendment to the United States Constitution guarantees a right to same-sex marriage. It does not foreclose that possibility, but this case, on its own, does not reach that destination.

 

Two Observations From The Dissent

Judge Smith’s dissent indicates that he could see a rational relationship between restricting the nomenclature of “marriage” to heterosexual couples based on the idea that a state would want to encourage “responsible procreation,” at least in the case of heterosexual couples who did not intend to concieve, but finding themselves pregnant, might decide to marry and raise their children together with the advantages of marriage. This is functionally the same reasoning in what I believe to be the first state supreme court case to address the issue with sobriety, Morrison v. Sadler (Ind. 2005) 821 N.E.2d 15.

Judge Smith also believes that a rational basis could be found in the idea that restricting the word “marriage” to heterosexual couples to encourage “optimal parenting,” on the idea that a state might decide that a man and a woman would serve through example to teach, among other things, appropriate gender roles. I have to disagree with him here — it’s too easy to imagine heterosexual couples teaching their children inappropriate gender roles through example (for instance, in a domestic violence situation) or single or homosexual parents able to find appropriate opposite-sex role models for their children to observe. I can’t see, myself, how adding the word “marriage” to a heterosexual relationship changes a domestic violence situation, nor how denying the word “marriage” to mommy and mommy’s relationship impels mommy and mommy to seek an adult male role model for their children to observe any more than they would have done otherwise.

Finally, Judge Smith agrees with Judge Reinhardt, and nearly all rational observers, that the motion to vacate the holding of the district court case on the grounds that the original trial judge, Vaughn Walker, was himself gay and potentially could have married his partner. As to that part of the case, the decision was 3-0.

 

A Thought About The Future

The ball is now in the proponents’ court. They are certainly not going to stop here. But they have a choice to make. If they wanted to, they could ask to re-argue the case to the entire Ninth Circuit en banc, which would result in a panel of 11 judges, instead of only 3, re-examining the issues. Or, they could directly petition the Supreme Court for certiorari now.

If I were playing the proponents’ game and trying to defend Proposition 8, I’d go to the Ninth Circuit first. The Ninth Circuit is not as liberal as it is reputed to be and there is a decent chance of drawing a panel of six judges who might find Prop. 8 to be valid. It would be a much greater advantage for them to go to the Supreme Court, as the case inevitably will, with at least one favorable decision in their pockets. And if they lose in an en banc hearing, they aren’t any worse off than they are now. It will take more time, and at the moment, no same-sex marriage licenses are issuing. There is no instruction in the current opinion that licenses start to issue and every indication that the panel knows theirs will not be the last word on things.

There is also some thought that maybe the Supreme Court will deny certiorari to this case, and not want to touch it. To that, I say “bollocks.” All nine Justices of the Supreme Court angled to get on the Supreme Court. And the reason you angle to get on the Supreme Court is to decide this case. Whether it’s specific to California or not, all nine Justices will be drawn here and it seems an impossibility to me that certiorari would be denied.

So this is not the last act in this play. Far from it.