A legal analysis of the Prop 8 decision: What it DOES mean, and what it DOESN'T mean.
This post is based on a reply in another thread, which I have decided to repost as an OP and expand a bit with the intention of correcting some misconceptions about today's ruling and what it means for the marriage equality battle, legally speaking. I also intend to offer a theory about why the 9th Circuit decided as it did.
The Great News and the Not-As-Great-News
First, the great news. As we all know by now, a 9th Circuit Court of Appeals panel issued a decision today declaring that Proposition 8, which stripped same-sex couples of the right to marry, but left intact their right to enter into domestic partnerships, violates Equal Protection guarantees under the federal Constitution. This is truly an important victory for our side. On its face, this is an indictment of the idea of "separate-but-equal" when it comes to marriage by another name. It also presents a huge obstacle to future efforts to take away marriage rights in states where they have already been won, provided the 9th Circuit's opinion is affirmed by the Supreme Court.
Now, the not-as-great-news. Contrary to what you may have read on DU or gleaned from news reports, the 9th Circuit's decision, even if it were affirmed by the Supreme Court in its present form, would NOT legalize same-sex marriage in states where same-sex marriage has never been legal. The decision contains a lot of great verbiage that favors our side. However, the holding of the court - that is, the rule that can be applied to future cases - is actually quite narrow and specific to the circumstances in California, where same-sex couples had domestic partnership rights before marriage was legalized and then banned. As I try to explain below, this is both a result of Supreme Court precedent constraining the 9th Circuit's decision, as well as a strategy by the 9th Circuit, I believe, to protect their decision from being overturned by the Roberts Court to the greatest extent possible.
In reading the decision, it becomes evident that the 9th Circuit was extremely careful to limit the scope of its decision, and in fact, explicitly declines to state that denying same-sex couples the right to marry is unconstitutional:
In other words, since California already gave same-sex couples all of the incidents of marriage through its domestic partnership laws, including the right to adopt children, the court concluded that taking away only the designation of 'marriage' could not have served any legitimate state interest other than to denigrate a minority of citizens, since the state's interest in childrearing or any of the other interests the proponents of Prop 8 often cite to justify their bigotry could not have been affected:
SO, TO SUMMARIZE
What the 9th Circuit's decision DID do:
- It DID hold that Prop 8 was unconstitutional, because same-sex couples in California already had the same rights as opposite-sex couples, and therefore stripping the designation of 'marriage' from same-sex couples could only have been to discriminate and for no other reason. This is the only holding, in this specific set of circumstances, that would be binding on other jurisdictions provided the Supreme Court did not overturn this decision.
- It DID state unequivocally that the designation of 'marriage' is legally significant, and that taking away the right for a particular class of people to call themselves 'married' is unlawful discrimination even if they retain the rights of marriage under another name.
- It DID, more generally, talk about equality for gays and lesbians in terms of equal protection and declare unequivocally that the status of marriage cannot be taken away, even under the very lax "rational basis" standard.
What the 9th Circuit's decision DID NOT do:
- It DID NOT hold that denying same-sex couples the right to marry, as a general proposition, is unconstitutional.
Why didn't the 9th Circuit go further?
At this point, you may be asking: why didn't the 9th Circuit go further? Why, if they said all this great stuff about equal protection for gays and lesbians, didn't they just go ahead and declare all same-sex marriage bans unconstitutional? Well, in my view, this may be the absolute best the 9th Circuit could do in light of the constraints placed on them by Supreme Court precedent. Let me explain.
As you are probably aware, there are three levels of "scrutiny" that can be applied to a discriminatory law to determine whether it's unconstitutional: the highest is strict scrutiny, followed by intermediate or heightened scrutiny, and finally, the lowest level of scrutiny, known as rational basis review. Rational basis review (RBR) is a notoriously easy standard to satisfy. Basically, when RBR applies, if the state (or stand-ins for the state) can identify pretty much any legitimate-sounding reason for the discriminatory law (other than a desire to harm the disfavored minority), the law stands. That low standard is what the Supreme Court has heretofore applied to laws that discriminate based on sexual orientation, most notably in the case Romer v. Evans.
Hence the problem for the 9th Circuit or any other federal court friendly to marriage equality: it's almost impossible to find discriminatory marriage laws unconstitutional under the very lax RBR standard, because any nonsensical "state interest" (like "encouraging procreation"
put forth by the state for denying marriage rights to same-sex couples would pass muster under that standard. So it is arguable that if the 9th Circuit intended to invalidate Prop 8, it was essentially forced to avoid the question of whether same-sex marriage should be legal as a general matter under the Constitution due to the constraints of existing Supreme Court precedent.
In fact, likely the only way that same-sex couples will be declared to have the right to marry under federal law is if the Supreme Court reverses itself and determines that some higher level of scrutiny (like strict scrutiny) should apply to laws that discriminate based on sexual orientation.
NOW, THAT SAID.
The 9th Circuit's decision is still very, very good for many reasons, not least of which is that it overturns a citizen-initiated referendum which the bigots are so fond of using as a gay-bashing tool. I also happen to think that the very limited effect of this decision is in fact a deliberate strategy on the part of the 9th Circuit panel. As much as they might like to address the broader questions of whether same-sex marriage is constitutionally guaranteed, they know what is coming next: a Supreme Court decision with very shaky support, at best, for the good guys. So in order to make their decision as Scalia-proof as they could, they kept the decision as narrow as possible for two reasons: 1) they do not want the decision overturned on the basis that the 9th Circuit overstepped its Constitutional mandate to decide this particular question; and 2) they do not want a potentially unfriendly SCOTUS to have an excuse to weigh in on the broader issue of whether gay marriage bans are generally constitutional. They are treading lightly for good reasons.
Now - the Supreme Court can elect to decide this case on different grounds. They might elect to address the broader question. We shall see - although, like the 9th Circuit, I too am wary of the current SCOTUS setting anything in stone when it comes to this issue.
So, there you have it. A momentous decision, to be sure, but one that has a narrow impact both by design and due to the constraints of existing law. Thanks for reading.
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