June 26, 2012
This post is part of the inaugural legal symposium we at Prop8TrialTracker.com are launching this week. We presented invited guests with the question: “Is it better for the LGBT rights and marriage equality movement if the Perry v. Brown case is or is not granted certiorari by the Supreme Court? Why?” Participants were asked to respond in 700 words or less.
Yesterday’s contribution was written by Chris Stoll, senior staff attorney at the National Center for Lesbian Rights.
If you’d like to submit a piece for our symposium, e-mail your piece with your name, title of your post, and a 1-2 sentence byline to: scottie AT couragecampaign DOT org. Enjoy the symposium!
By Ari Ezra Waldman
It is an honor to participate in this symposium with this outstanding group of experts. I want to thank the Courage Campaign and the Prop8TrialTracker.com team for inviting me. I look forward to learning from and engaging with the community.
Today, I would like to discuss the narrow holding in Perry v. Brown and how the Ninth Circuit boxed itself into a logical corner that could have been avoided.
According to Judge Reinhardt’s majority opinion, Prop 8 did something simple, yet exceedingly harmful: it took away the word “marriage” from gay people, but left every other right associated with domestic partnerships, adoptions, and so on intact (Perry v. Brown, slip op. at 35). In doing so, Prop 8 identified something vital, an institution that is so essential to human life and dignity, and picked out one group that is not worthy of recognition or inclusion.
So, the question was whether the people of California had a legitimate reason to enact a constitutional amendment that served only to take away the right of same-sex couples to dignify their relationships with the word “marriage”? This was the narrowest way to construe the case. As you might recall, District Court Judge Vaughn Walker decided that same-sex marriage bans violate due process (by denying gay people the fundamental right to marry) and violate equal protection (by treating gay people differently than straight people for no legitimate reason). The Ninth Circuit could have affirmed on those grounds, but chose narrower grounds instead – namely, Prop 8 violated equal protection because it took away an already existing right to marry for no other reason but to harm and discriminate against gay people. To come to that conclusion, the court quoted liberally from Romer v. Evans, another (albeit broader) case where the majority took away rights simply because of animus toward gays.
In Romer, the people of Colorado passed Constitutional Amendment 2 banning any legislative or executive or judicial body in the state from enacting an anti-discrimination law that included sexual orientation. The Supreme Court found no legitimate rational basis for doing so, inferring that it could only have been based on animus toward gays and nothing more, a rationale the Constitution cannot abide. Judge Reinhardt admitted that Romer was broader, but, like Amendment 2, Prop 8 “worked a meaningful harm” on a unique class of persons by withdrawing a right, treating one group unequally, and gave one group a special and unique legal disability (46).
The legitimacy of that answer in Perry requires that either (a) the sheer breadth of Amendment 2 was not necessary to the conclusion in Romer and that all that was necessary was a taking away of rights that “worked a meaningful harm” on an unpopular group, or (b) Prop 8 was just as broad and harmful. Judge Reinhardt seems to want it both ways: At one point, he dismissed the astounding reach of Amendment 2, noting that the real Constitutional evil in Romer was the taking away of rights, however many rights were taken away. And yet, earlier in his opinion, he spoke eloquently about the essential importance of the word “marriage” and its importance for gay dignity, equality, and true membership in society.
This highlights the central logical flaw inherent in the court’s narrow construction of the case and its attendant narrow holding.
Judge Reinhardt is wrong to intimate that the breadth of Amendment 2 was immaterial. Romer’s allowance for an inference of animus didn’t hinge on the mere fact that rights were taken away from an unpopular group; rather, it was the breadth of the law that took away those rights that proved the antigay hatred. So, if Romer truly answers the question in Perry, the breadth of the harm effectuated by Prop 8 has to be similarly broad.
Despite Judge Reinhardt’s protestations to the contrary, his narrow construction of Prop 8 made that argument that much more difficult. How can the harm be as great as denying one group sweeping access to every legislative, executive, and judicial body in the state if, as the court noted, Prop 8 left all adoption, domestic partnership, and other family laws intact?
There are two ways out of this quagmire. First, we could show that denying “marriage” is a devastating thing. Judge Reinhardt tried to take this course in Perry, but he could have gone further. State recognition of the marriage of two individuals in love is more than the sum of thousands of state and federal benefits that come with the designation. Marriage licenses bring with them stability, a sense of belonging, an acknowledgment from the state that a union is valid, good, and a boon to society. Anything less is separate and unequal, reminding gays that they, and their love, are somehow illegitimate, lacking moral worth, and undeserving of honor. This is why marriage recognition for gays is essentially an illiberal, almost Aristotelian quest for honor.
Second, we could recognize that Perry is not simply about how wrong it is to take rights away, but also the illegitimacy of any denial of marriage recognition for gay persons. Whether it is Prop 8 taking away marriage rights or any of the myriad of gay marriage bans that were preemptively passed in 2004, all of them work the same meaningful and broad-based harm by burdening gay persons and no others for no legitimate reason. By trying his best to make Perry narrow and immune from rejection by the Supreme Court, Judge Reinhardt inadvertently made his legal argument harder.
But, despite the gloss that Judge Reinhardt gave Romer, that alone cannot justify Supreme Court review. In fact, almost everything about this case counsels against a grant of certiorari: the narrow holding ensures that Perry will apply only to California; there is no circuit split on any issue raised in the case; and the Supreme Court would likely rather take the clear cut Defense of Marriage Act cases before diving into the morass of state gay marriages.
And, this would be a positive outcome for the LGBT community. Granted, we may eventually need the Supreme Court to weigh in on gay marriage bans. But, experts are nervous about the current court’s willingness to do so today. Plus, the DOMA case, Gill v. Office of Personnel Management, offers a wider path for a progressive victory (both conservative and liberal jurists think DOMA fails Constitutional scrutiny). If the Supreme Court denies review, gay couples could marry in California and we can lean on a federal appellate court opinion that struck down a ban on gay marriage. These are victories that will have meaning on Main Street and at One First Street.
Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his Ph.D. at Columbia. He graduated from Harvard Law School and Harvard College. His scholarship focuses on technology, privacy, speech, and gay rights. He writes a weekly LGBT Law column at Towleroad.com