TAG | Richard Muniz
[Editor's Note: With the Prop 8 ruling today from the Ninth Circuit, there have been numerous media reports that are not entirely accurate. My roommate, Richard Muniz, repeatedly pointed out some of the nuances of the ruling (and inaccurate reports). I suggested he write a guest blog to clarify some of the matters. And since he is far more savvy in understanding constitutional law issues, I defer to him.]
Today’s much celebrated decision in Perry v. Brown, affirming the unconstitutionality of Prop. 8, is laudable for many reasons. For one, it confirms that discrimination against LGBT folks solely because of their/our sexual orientation is not a legitimate governmental objective and hence unconstitutional. Second, and mostly ignored by today’s media coverage, the panel unanimously agreed that the sexual orientation of Chief Judge Walker was not a basis for recusal (and therefore denial of a motion to toss out his August 4, 2010, ruling was appropriate), a first for an appellate court. So, what else did today’s decision say and what did it omit?
What the decision says
The court, 2–1, concluded Prop. 8 violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.
Why you may ask? Because Prop. 8 “takes away” rights previously granted to people for no other reason than animus.
This is important and the core of the Ninth Circuit’s decision. It is very narrow and unique to California. The idea here is that California constitutionally guaranteed same-sex couples the right to marry (See In re Marriage Cases, 183 P.3d 384 (2008)), and 143 days later, California voters amended their Constitution to “take away” the right to marry for only same-sex couples. And, once the government giveth, it can only taketh away for rational, legitimate reasons.
The reasons offered by the proponents of Prop. 8 (and their supporters)—furthering responsible procreation and childrearing, protecting religious freedom, taking it slow when making significant changes, and “preventing children from being taught about same-sex marriage in schools”—were all rejected by a majority of the panel. So, what remains is an inference of animus. Basically, if no rational reason remains to explain Prop. 8, then all that could remain is hate, which is the antithesis of reason/rationality. That notion follows earlier Supreme Court cases, including and most notably Romer v. Evans, 517 U.S. 620 (1996), which said that Colorado Amendment 2 was unconstitutional. (Amendment 2 was a voter-enacted measure that nullified existing and prevented future anti-discrimination laws enacted for the protection of LGBT individuals.)
Importantly, this argument is not present in the district court’s 2010 decision initially striking down Prop. 8. Indeed, Chief Judge Walker concluded that Prop. 8 violated the Due Process Clause of the Fourteenth Amendment because it denied lesbians and gays access to marriage, which is a fundamental right guaranteed by the Federal Constitution, and violated the Equal Protection Clause because it discriminated against them because of their sexes and sexual orientations. The Ninth Circuit today avoided both of those arguments, opting to chart a new course.
In other words, the 2010 lower court decision and today’s Ninth Circuit decision are similar only in that they both conclude Prop. 8 violated the equal protection rights of lesbian and gays. They are dissimilar on how they reached that conclusion.
What it doesn’t say?
First, as noted above, it is very narrow and unique to California. The decision does not affirm Chief Judge Walker’s conclusion that individuals have a federal constitutional right to marry another of the same sex. Today’s decision also does not quite say that Prop. 8 unconstitutionally discriminates against lesbians and gays because of their sexual orientations. (Indeed, there is nothing in the opinion about whether lesbians and gays get the same constitutional review as those given to race- or sex-based laws, i.e, whether sexual orientation is a suspect or quasi-suspect class.) Rather, it focuses in on another form of discrimination: the taking away of rights because of a majority’s disfavor of a minority group.
Also worth noting was the court’s willingness to ignore the majority of Chief Judge Walker’s findings. Judge Walker made over 80 findings of fact, including “46. Individuals do not generally choose their sexual orientation. No credible evidence supports a finding that an individual may, through conscious decision, therapeutic intervention or any other method, change his or her sexual orientation.” and “51. Marrying a person of the opposite sex is an unrealistic option for gay and lesbian individuals.”
What are the ruling’s weaknesses? The first is the distinction between “taking away” rights already granted and not giving it in the first instance. The court, as I have said, relies on the “taking-away” argument by saying that taking away rights is somehow different than not giving the right in the first place. But, is that really true? Consider: you were given the right to marry, but before you could take advantage of it, the right was revoked. Now consider this: you were never given the right to marry. Is there really a difference? In both cases, you cannot get married. Although, I admit the first example seems more pernicious than the second, but the question really is whether that distinction has constitutional significance.
The second weakness is the court’s rejection of tradition as a legitimate objective for lawmaking. Meaning, the purpose underlying a law cannot be “that’s how we have always done things and so that’s how we should continue to do things.” But, of course, if we have done things for a really long time, then maybe we have been doing it right for all that time, so why should we change our practice? I hate to do this, but an example is a law against polygamy. Why do we outlaw polygamy? Because we think it is wrong? Well, that is not a constitutionally acceptable reason for the same reason as a law targeting lesbians and gays for unequal treatment because of a disapproval of their/our relationships is unconstitutional. Is it because we have always outlawed the practice? Sure, but the court today said that is not enough either.
The third weakness is the court’s (over)reliance on Romer v. Evans. Prop. 8 deprives same-sex couples of the designation of “marriage,” nothing more. Colorado Amendment 2, on the other hand, was “far reaching” in that it singled out lesbians and gays and placed on them/us a unique disability experienced by no other group (e.g., only lesbians and gays could not receive the protections of anti-discrimination laws, but racial minorities and women could still obtain those protections). Judge Smith noted this difference between Prop. 8 and Amendment 2 and others in his concurring and dissenting opinion. He also discussed the first weakness above in his opinion.