9th Circuit Court Rules That California’s Proposition 8 Is Unconstitutional on narrow grounds that won’t apply outside California

02.07.2012, 3:21 PM

You can read the ruling (in pdf form) here.

On a first glance, I think there’s an aspect to this ruling a lot of people will misunderstand. People such as constitutional law scholar John Eastman, the chairman of NOM, who blustered that “Never before has a federal appeals court – or any federal court for that matter – found a right to gay marriage under the US Constitution.”

But the court did not find “a right to gay marriage under the US Constitution.” The decision is very explicit on this point, and as a law professor Eastman must know that what he’s saying isn’t true. From the decision (written by Judge Stephen Reinhardt):

We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.

NOM’s Brian Brown also lies about the stakes of this ruling (“But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states”), and predictably ties it to a fundraising appeal.

In fact, the Court ruled on a much narrower question: Can a state pass a special law to eliminate an already-existing right for same-sex couples to have the legal designation “marriage” applied to their relationships, when the state otherwise makes no legal distinction between same-sex and opposite-sex relationships? And the Court’s answer is no.

The ruling relies heavily on the Supreme Court’s Romer v Evans decision, a 1996 ruling which overturned an anti-gay law in Colorado. Justice Kennedy was the author of the Romer decision, which could be relevant, since Kennedy is likely to be the swing vote if the Supreme Court accepts the inevitable appeal to the 9th Circuit’s decision.

From the Court’s decision:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite sex-couples, regardless of their marital status, all parties agree that Proposition 8 had only one effect. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationship. Nothing more, nothing less.

Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, or it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education. It could not have been enacted to safeguard these liberties.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” (Romer v. Evans, 517 U.S. 620,633).

The Court specified that its ruling applies only to California. They also ruled that Protect Marriage had standing to appeal, and they rejected the argument that Judge Walker was required to recuse himself because he is gay and in a relationship. (I agree with the Court on both those decisions.)

I’m actually not disappointed that this ruling is so narrow; my suspicion is that a straightforward finding that same-sex couples have a constitutional right to marry would be overturned by the current Supreme Court, which would be a setback. This decision, because it’s so narrow, has a much better chance of remaining good law.

If you want to read more, Andrew Sullivan has a good collection of links.

UPDATE: Oren Kerr’s comment is worth quoting in full:

Based on a quick skim, [Judge] Reinhardt decided that the Supreme Court wasn’t ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer [Justice Kennedy] a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt’s reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court’s Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker’s opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.

Although interesting, of course that’s just speculative. And just because a decision may be strategic doesn’t mean it’s incorrect on the legal merits, of course.

UPDATE 2: More links!

  1. Liz Newcomb worries that the dissent could signal that this decision will be in trouble at the Supreme Court level.
  2. Nancy Polikoff does a great job nutshelling the decision.
  3. And David at the Debate Link is struck by the weirdness of this decision.

56 Responses to “9th Circuit Court Rules That California’s Proposition 8 Is Unconstitutional on narrow grounds that won’t apply outside California”

  1. Any Mouse says:

    “an already-existing right” that was invented by the earlier court, after having been rejected by the people. Twice.

  2. Are you saying courts shouldn’t be legally able to disagree with popular votes, ever?

    We live in a constitutional republic, not a direct democracy. Do you consider that a bad thing?

    If not, then with all due respect, what’s your point?

  3. Any Mouse says:

    It’s a technicality that this right was “already-existing”, because that “right” itself was was created by the earlier court. This was the entire point of Prop 8 — to correct that misunderstanding.

    You cannot claim that the 14th Amendment created a right to same-sex marriage back in 1868 when it was ratified — but we just now realized it? That’s absurd.

  4. Christopher says:

    Marriage to the person of one’s own choosing has been described as a “fundamental right” by SCOTUS 16 times in last 75 years of its jurisprudence. I’d also point out that the CA legislature twice passed marriage equality (in 2005 & 2007) and it was vetoed by that paragon of marital virtue – Gov Arnold Schwarzenegger. Whether you tegard the right as invented or not, it existed some 36,000 Californians who were married before Nov 2008 atre still married though Yes on 8, the defendants in this this case, petitioned the CA courts to have those people forcibly divorced.

  5. Christopher says:

    The 14th amendment calls for due process and “equal protection of the laws”. If that applied only to race as you seem to suggest, it would have stated that specifically. It doesn’t. Our society and understanding has evolved to include gender for instance as part of our understanding of 14th amendment, as well as sexual orientation, see SCOTUS in Romer (1996) and Lawrence (2003). Todays ruling is built on Romer very specifically.

  6. Christopher says:

    Mouse – you can’t substantiate your claim that our idea of and jurisprudence surrounding the protections of the constitution haven’t evolved since 1868. That really is absurd.

  7. David Blankenhorn says:

    Barry: So, your understanding is that the SC in this decision is being invited to overturn Prop 8 not because ss couples necessarily have a constitutional right to marry, but because voters in a state do not have the right via referendum to produce results that are motivated by animus toward gays? And you think that, all things considered, this would be the best way for the SC to view the issue?

    So, the main result of such a SC decision, I guess, would simply be to make it the case that, once ssm is established in a state, either via legislation or through a court, the voters of the state cannot via referendum get rid of the law, since to do so would (I guess by definition, right?) amount to constitutional bigotry toward others. Isn’t that basically what the practical import of such a decision would be?

  8. Christopher says:

    Not exactly David. Because Prop 8 only took away a designation and left the rights in tact, the court is saying that that simply doesn’t make sense as a reason and didn’t do anything toward the stated non-bigoted goals of more responsible procreation etc. Goals which the defense stated but provided no objective proof for in evidence during the trial.

  9. Christopher says:

    No other state is in the situation that Prop 8 put California in. Theoretically if California voters were to take away any legal status from gay couples that would not be prohibited by this decision, though other challenges could be brought to that, plus it would polo ally untenable in California which barely passed Prop 8 in 2008.

  10. Christopher says:

    NB: Maine, Washington, and Maryland have referendum mechanisms in thier constitutions that allow a law to be challenged before it goes into effect – as happened in 2009 when anti-gay folks in Washington tried and failed to get civil unions overturned at the ballot box. Maine had a way, being used now by marriage equality people, to force the legislature to consider a bill and if they fail to pass it, that bill goes to the electorate in a referendum. That will happen in Maine in November.

  11. David Blankenhorn says:

    Barry: The more I think about it, the more the contrast between the two lines of legal reasoning that you adumbrate above sounds like a distinction without much of difference. In the one line of reasoning, the court would say that same-sex couples have a constitutional right to marry. In the second, the court would say that voters cannot via referendum disallow same-sex marriage, since there is no rational, constitutionally permissable reason for doing so. So doesn’t the second line of argument seem to be only a slightly more indirect way of endorsing the first? Or am I missing something?

  12. Jeffrey says:

    The focus was on taking away the legal relationship. There was no basis for taking away the legally-granted right to marriage that was approved by the state Supreme Court. Because the taking-away of the marriage right did not coincide with any parenting rights, there was no rational relationship between the removal of rights and alleged relationship between parenting and marriage.

    Voters, through referendum, are not free to just strip people of rights or make unconstitutional laws. If the residents of secular Maine, for instance, wanted to strip the religious liberty from the state constitution, courts wouldn’t stand for it. If residents of Alabama decided to reimpose school segregation, they wouldn’t be free to do it just because they voted for it.

  13. Christopher says:

    You are missing Romer v Evans David. (SCOTUS, 1996, 6-3, CO had enacted an amendment to their constitution disallowing and repealing any and all gay rights laws in the state). The Romer didn’t rule that gay rights laws must be enacted but that having enacted them, repealing them and disallowing tbem with no rational basis is unconstitutional
    I’d suggest reading the decision, or commentary on it. There is a big legal difference between taking an existing right away through initiative, which hadnt happened in the since 1915 when NJ took away women’s suffrage, and not enacting that right. Olson is on Maddow now explaining if you want to check it out. The important thing is this decision ONLY applies to the specific situation in California.

  14. Christopher says:

    But David, I will say the trial record of this case will make a powerful though not binding precedent that there is very little if any proof that these laws meet the “rational basis” test in federal and constitutional law, as it didn’t in Romer or in Lawrence v Texas. The findings of fact in this trial will be admissible in any federal or state court as evidence and this decision will have to be dealt with as precedent.

  15. Christopher says:

    Further, since this applies only very narrowly to CA, I don’t believe SCOTUS will grant cert in this case.

  16. Peter Hoh says:

    It all comes down to Justice Kennedy, doesn’t it?

    I don’t think the Supreme Court is prepared to find a sweeping right to same-sex marriage. On the other hand, I don’t think Kennedy wanted to go down in history as the deciding vote that upheld the prohibition on same-sex marriage.

    Looks like Kennedy has his way out. The 9th Circuit has found narrow grounds on which Prop 8 can be overturned without requiring that all states recognize same-sex marriage.

    Since the outcome is pretty much the same if the Court hears the case or doesn’t hear the case, I expect that the Court will choose not to hear the case.

  17. R.K. says:

    Eugene Volokh’s assessment of the decision here.

  18. David Blankenhorn says:

    Christopher and Jeffrey: What you say seems to me to confirm my thesis, not rebut or qualify it. So it seems to me that we are all in agreement on what the basic proposition is. The only thing I can’t see, is when Christopher says this is “only California.” If it’s constitutionally impermissable for voters to disallow gay marriage in California, it’s hard to see how they permissably could do it in other states.

  19. Christopher says:

    David, no other state fulfills the criteria of this decision – a state that allows civil unions, has a binding initiative process, has no marriage amendment already in place, and don’t have an initiative process that challenges law that haven’t yet taken effect (a “people’s veto, as in Maine and Washington). The only state could possibly fall into this category without changing it’s constitution is Wyoming and that is very unlikely. I’d recommend the excellent summary and analysis of the decision at Towleroad. http://www.towleroad.com/2012/02/9thanalysis.html

  20. Christopher says:

    Of the 43 states that don’t have marriage equality (6 plus CA), at least 34 will require some kind of vote of the people to enact it – a referendum like ME, or the repeal of a state constitutional amendment. Two more, WY and NM will probably require votes of the electorate. Seven states won’t require it: NJ, DE, IL, HI, RI, PA, and WV.

  21. Any Mouse says:

    Did he just say “adumbrate”?

  22. nobody.really says:

    You cannot claim that the 14th Amendment created a right to same-sex marriage back in 1868 when it was ratified — but we just now realized it? That’s absurd.

    That’s a fair statement of an originalist interpretation of the Constitution. By the same reasoning, because the 14th Amendment was not created to provide women with equal protection of the laws, it would be absurd to suggest that they are entitled to such protections. Ergo the Supreme Ct should reverse its decision in Reed v. Reed, 404 U.S. 71 (1971), and subsequent cases.

    She who lives by originalism shall die by originalism.

    [O]nce ssm is established in a state, either via legislation or through a court, the voters of the state cannot via referendum get rid of the law, since to do so would (I guess by definition, right?) amount to constitutional bigotry toward others. Isn’t that basically what the practical import of such a decision would be?

    That’s how it looks to me: The Court has created a one-way ratchet that constricts, but never relaxes, the grounds for discrimination. See Reitman v. Mulkey, 387 U.S. 369 (1967); Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982); Gordon v. Lance, 403 U.S. 1(1971); Romer v. Evans, 517 U.S. 620 (1996).

    I gotta say, I don’t find the reasoning very compelling, but the factual context of the decisions are pretty awful: Government adopts some anti-discrimination policy. The public adopts a state-wide repudiation of that policy. Legally, this basically restores the status quo. But symbolically, it represents a terrible blow to the minority group in question, much worse than the status quo. I mean, is there anything worse than having to work day to day in an environment where nobody seems to like you? Yeah: going to the breakroom and discovering that everyone is attending a “We Hate Nobody.Really” rally — that’s worse. Really, really worse.

    I suspect it’s this symbolic harm that the Court seeks to remedy.

    Which may make the current case oddly more compelling the prior ones: The Court ruled that there was no legitimate governmental interest in withholding state recognition of same-sex marriages – because the issue was merely symbolic. And the Court could find no legitimate governmental purpose in sending a symbolic message about the subordinate status of same-sex unions. If there had been some ACTUAL rights and benefits on the table – access to child support, say – the Court would have had to engage in a different kind of analysis. But there wasn’t, so it didn’t.

    What’s my personal views on this? So glad you asked….

  23. nobody.really says:

    All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort.” (Romer v. Evans, 517 U.S. 620,633).

    Oh, I’m diggin’ this. But I’ll go with a slightly different phrasing of the rationale.

    Moral: Hate gays? Knock yourself out. But don’t use the levers of government for that purpose. Those levers are for legitimate governmental purposes only.

    Is there a legitimate governmental purpose in facilitating good child-rearing or education? Sure. What if a narrowly-tailored public policy promoting a legitimate governmental purpose had the incidental effect of discriminating against homosexuals? So be it. Ergo, all the proponents of Prop. 8 had to do is identify a legit governmental purpose for which the proposition was a narrowly-tailored policy. Easy-peasy, right?

    Alas for the proponents of Prop 8, they could identify NO purpose for the law – legitimate governmental or otherwise – except the purpose of teaching values. Specifically, teaching people to value homosexual unions less than heterosexual ones.

    I have a phrase for when government engages in the practice of teaching values unrelated to a legitimate governmental purpose: “the Establishment of Religion.” And the 1st Amendment says it’s a no-no.

    Dear Government: I’ll decide what I value, thank you very much. I’m appalled at the idea that you might claim my body during a military draft, but I can at least understand the legitimate governmental purpose. But keep your damn laws off my MIND.

  24. David Blankenhorn says:

    Christopher: I am, sincerely, quite certain that you know more about this than I do, at least at the level of detail and specifics. I’m not a lawyer, and as perhaps you’ve noticed I tend not to think about things — I most certainly do not think about marriage as an institution — in the way that lawyers usually do. All of this I admit. And yet at the simple level — pretend we are children talking — I can’t agree with the narrative, the story line, that you adumbrate (HT, anymouse) above. It’s way too complicated and too, well, lawyerly.

    Here’s the narrative that I see. A state court says, here is gay marriage. The voters in resonse say, no thank you, we hereby vote to disallow that. And now a higher court, and next possibly the SC of the land (if things go the way you want and expect), says, disallowing gay marriage through the ballot box is constitutionally impermissable bigotry without any rational basis.

    That’s the story (admittedly simplified, etc) that I see. And that means that, essentially, that the SC will have said, here is gay marriage, America. And that’s why you’ll be happy.

    As to my own view of all this, I’m not even, here and now, gonna get started. But I do want to tell an old Communist joke. Some district Party guy tells the Party Leader, “Comrade Leader, the people do not support the party line.” And the Party Leader says, “Well, then, we’ll just have to get new people.”

  25. David Blankenhorn says:

    P.S. Barry, do you really feel comfortable, having had a chance to sleep on it, calling someone who says that the SC upholding this decision will aid the cause of ssm in all states and harm the cause of customary marriage in all states a “liar”? I can possibly from you POV see something like “overstatement” — but, “liar”? Is that really fair?

  26. Peter Hoh says:

    David, last night I caught a documentary about the Freedom Riders. Did not the court say, in Boynton, “Here’s integration”?

    If you want to reduce the argument to the idea that the court should not overrule the will of the people, then I think you need to address why the court was right in deciding key Civil Rights cases.

    Personally, I prefer that this issue not be decided by the courts. I understand the appeal of those who argue that civil rights should not be subject to popular vote. And I understand that as a married person, I’m not in the class that is suffering a few more years while legislatures work this out, and as such, it’s not up for me to decide that those who want to fight this out in the court should wait, instead.

  27. Christopher says:

    David, This IS a federal legal decision we are discussing, of course it and the parsing of it is “lawyerly”. It is about the law.

    I’ve said this quite a bit here. SCOTUS has ruled 16 times that the freedom to marry “the person of one’s own choice” is a “fundamental right”. Whether you see it a different way for yourself or not, the truth is, and this was acknowledged in yesterday’s dissent, that Prop 8 took away a fundamental righ from just one targeted group of Californians.

    I ask this sincerely and with respect, which other rights should be put to vote? The right to avail yourself to legislators to enact nondiscrimination laws? The right to become, if you are qualified, a public school teacher? The right to be considered as an adoptive or foster parent? All those have taken away from gay people via public vote in the US and as recently as Novenber 2008.

    The burden of proof is high for the proponents in this case. Prop 8 left every parenting law in tact in California, it left every right surrounding marriage in tact. What it did do was remove a designation which has no demonstrable, or provable in a court of law, effect on whether gay people become parents, on whether people use gamete donation, or whether people in general are better parents. That was the schocking about the defense of 8, that when pressed they could not offer evidence of harm, only concern about potential harm. SCOTUS has a long line of cases that hold that concern over potential harm does not meet the “rational basis” test.

    If this decision is upheld, it only applies directly to California. The debate in the culture will continue and as noted above most states will require public votes that will not be affected by this decision no matter which way they go. Those votes will start with referenda in Maine and Washington state in November; the Washington legislature is to approve marriage equality this afternoon.

    May I ask you something? Do you think marriages between your neighbors in NY and your own (or others between a man and a woman) are so different from each other in reality? I reject the idea that a court presented California with gay marriage, but that they ruled that same sex couples cannot be excluded from civil marriage. There isn’t gay marriage and straight marriage in law anymore than there interracial marriage and regular marriage, or first marriage and second marriage. With the exception of DOMA (at this point, the federal recognition ban there was been ruled unconstitutional by two federal circuit courts) all legal marriage are treated the same way in the law. I think that’s required by the equal protection clause in the 14th amendment.

    I do know the law and the politics and the history of these issues very thoroughly. It’s because they directly effect my and my families well- being, financial situation (I am a cancer survivor and if I were to die tomorrow (knock wood) my spouse would be filled taxed on his inheritance, including my half of our home as though we were strangers (while in man/woman marriages from the same state a spouse is exempted from taxation when they inherit – that’s true for Jonathan Rauch and his husband as well which is why I asked you to consider the federal recognition ban in DOMA. For many people that single tax burden would mean selling the home you shared, just after you’ve list your spouse, to pay this tax. A tax not paid by any other married couple. So this is a very serious, very directly personal struggle for me and my family. That’s why I look at it legally and why I dont look at it as an academic issue.

    Finally, with respect, I’d ask you to reconsider framing something that goes to the heart of my family’s dignity, freedom (as someone with a shorter than average life expectancy I can you I don’t risk travel to states where my partner and I have no legal relationship, unless it is absolutely unavoidable – in practice, my freedom of movement is curtailed in my country), and wallet with a “communist joke”. I think I and the issues I and others raise deserve more respect than that.

  28. Christopher says:

    To Peter’s point David, there were certainly, when Brown v Board was decided (at the height of Cold War), quite a few white people who believed that equality among the races had a connection to communism.

    When Loving v Virginia was decided by SCOTUS in 1967 a full 72% of Americans were opposed to interracial marriage.

  29. David wrote:

    Barry, do you really feel comfortable, having had a chance to sleep on it, calling someone who says that the SC upholding this decision will aid the cause of ssm in all states and harm the cause of customary marriage in all states a “liar”? I can possibly from you POV see something like “overstatement” — but, “liar”? Is that really fair?

    The person I called a liar was Brian Brown. Let’s look at what he said, in the post I linked to, at more length:

    [This decision] sets up an all-or-nothing showdown at the United States Supreme Court.

    Please help support an appeal to the United States Supreme Court by making a tax-deductible donation right away!

    Donate Now

    A Supreme Court victory would preserve the marriage laws of 44 states, denying same-sex marriage radicals in their campaign to force gay marriage on the entire nation in one fell swoop.

    But if we lose at the Supreme Court, marriage will be jeopardized not just in California, but in all 50 states.

    [Here I cut out several paragraphs of asking for money.]

    This is it. This is the whole ball game. If we lose here, the laws in 44 states defending marriage will crumble and we CANNOT let that happen!

    Brown clearly went a great deal beyond just saying that this decision, if it is upheld in the Supreme Court, will “aid” the SSM cause.

    I’m perfectly comfortable saying that statements like “This is the whole ball game. If we lose here, the laws in 44 states defending marriage will crumble” are lies.

    Put another way, let’s imagine two alternate universes.

    In universe 1, the Supreme Court upholds this decision, agrees with the lower court that it applies only to California, and orders that Proposition 8 is revoked.

    In universe 2, the Supreme Court rules that the 14th amendment requires all states and the federal government to recognize same-sex marriages, and it is unconstitutional for any state to refuse to give a marriage license to a couple because they are of the same sex.

    Do you really think that it would be honest to say that there is NO difference between universe 1 and universe 2? Because that’s certainly the impression that Mr. Brown was trying to give his readers, though both what he said and the apocalyptic tone he used to say it.

  30. But, just to be clear: If all Mr. Brown had said was “the SC upholding this decision will aid the cause of ssm in all states and harm the cause of customary marriage in all states,” then no, I would not call that a lie.

    By the way, I give permission for everyone who has posted on this thread to post more than three times. Go wild! :-p

  31. Barry: The more I think about it, the more the contrast between the two lines of legal reasoning that you adumbrate above sounds like a distinction without much of difference. In the one line of reasoning, the court would say that same-sex couples have a constitutional right to marry. In the second, the court would say that voters cannot via referendum disallow same-sex marriage, since there is no rational, constitutionally permissable reason for doing so. So doesn’t the second line of argument seem to be only a slightly more indirect way of endorsing the first? Or am I missing something?

    I think your nutshelling of the second line of reasoning is inaccurate.

    A more accurate nutshelling of the second line of reasoning would be: “In the second, the court would say that voters cannot via referendum disallow an already existing right to same-sex marriage, unless they can provide a rational, constitutionally permissible reason for doing so.”

    The Court made very clear that it’s decision applies only to cases in which an already existing-in-practice right is being taken away. You may find that an odd distinction to make, but it is nonetheless the distinction the Court made, multiple times, in explicit language. So I don’t think it can be overlooked.

    The second thing is that the Court did not rule that it was unimaginable that no state could ever provide a rational, constitutionally permission reason for banning SSM. They ruled only on the specific arguments that were actually presented to them in one specific case about California.

    There’s a tendency among SSM opponents to believe that there is no such thing as a “narrow” ruling — that when a Court orders “A,” that’s the same thing as the Court ordering “B C and D” because BCD is implied by A. I think that perhaps you’re thinking in this way about this case? But in practice — especially when it comes to state-specific rulings — some rulings genuinely are narrow, and BCD don’t inevitably follow from A.

  32. David Blankenhorn says:

    Peter: I agree with you that there is a terribly important and irrreplaceable role for the courts in our nation, in part as a (often THE) protector of rights of minorities, and that, for example, ending legal segregation (despite the fact that the great majority of whites in the southern states wanted segregation) was the good and proper thing to do; as you say, the courts simply said, “here’s integration.” I’m a southerner. I lived through this. I feel the rightness of what the courts did in my bones. The question is, do you think that is what the court is doing in THIS case? Perhaps you do; certainly many people do; I’ve spent many many hours wrestling with precisely this question, and I do not. Maybe I’m wrong; I admit that. But I don’t think it’s the same.

    Christopher: You are raising literally scores of points; you are presenting all of your opinions as facts; and you say everything with such aggression and accusation. I can’t possibly respond in a serious way. Sorry.

    Barry: I’m sure you’ve seen some of the pro-ssm direct mail, haven’t you? I really do think “liar” is unfair, unless you are also going to call many many many other people, on both sides of this issue, “liars.”

    Barry: On your nutshell A and nutshell B thesis, I’m sorry, but I really don’t see it. The “already existing right” to which you refer had only existed in CA for a few months and was itself imposed by a court, against the will of the citizenry and in rather shocking violation of long-standing legal norms. So the argument about when voters get to say anything is completely circular. No matter where in the process one wants to enter in, if a court says, “here is ssm,” it stands, and if the people vote against ssm, it does not stand. I really don’t see how it’s possible as a matter of practical politics to draw any other conclusion.

    Nor in my view does it make sense, other than at purely theoretical level, to point out, as if by way of consolation, that, well, some time in the future maybe some clever souls might be able to persuade these judges that customary marriage has a rational basis. Ain’t gonna happen! The reasons for the rationality of customary marriage have already been presented to these judges many times, and in general have been rejected by them out of hand. No one in the future, no matter how clever, is going to discover any new, previously unexamined reasons for the rationality of customary marriage, so if it’s not rational today, it’s not going to suddenly become rational next year or next decade (except, of course, as a purely theortetical possibility).

    Nor, finally, does the argument that “this is only about CA” seem much more than a kind of rhetorical strategy. Good grief, I don’t think anybody really believes that, fundamentally, such a decision from the SC would only affect CA — notwitstanding all of the (for all I know correct) fine print about its alleged narrowness.

  33. Christopher says:

    Then let’s separate the issues David. Do you believe as Barry and Peter have brought up that other civil rights of gay people as a class should be put to a vote? They have been as outlined above.

    And the DOMA federal recognition of legal marriages question. You say you weren’t aware of it and you really don’t seem to want to answer a very simple question at all. Honestly, you don’t seem to me to be interested in knowing the burdens that law – a bedrock of the anti-ssm movement – puts on gay couples/families like mine and like Mr Rauch’s.

    Acussatory? If your physical and financial family’s well being were literally at stake, how would phrase a response? I’d hope you’d be just as aggressive in defending your family.

    You often add a joke or some bit of levity when you want to avoid discussion here. You talked about the “more American phrase you and others have so much fun with”. What astonished me is that you don’t seem to be aware of the very direct, very personal stakes at play for gay couples like my family or even those of friends of yours like Mr Rauch.

    Let’s be honest with each other. It’s not that you can’t engage on these topics, it’s that you choose not to know about them. To me, and many others, that speaks volumes. You seem to me to be a very smart and decent man. But I’d agree with Dale Carpenter that you are “a man at war with yourself”. That war has very real causalities and I am one of them. I bear you no ill will though you insist my family be legally burdened for the possible help of children who are not ours and who we no connection to. But it seems important to me that you understand the results, however regrettable you find them, of the policies you endorse.

    I find it odd too that you draw these conclusions about this decision without having read it. I would again suggest actually reading the decision before you determine its impact, in law or in culture.

    There is a big difference between civility the kind of kid glove treatment you seem to expect. You’re clearly a brave man David, how about pulling your socks up on this, or better yet walk in my shoes for a day? That is, very respectfully what I ask. In this instance, I don’t see empathy toward people who expect big sacrifices from as asking too much of you. Am I wrong on that?

  34. David wrote:

    I’m sure you’ve seen some of the pro-ssm direct mail, haven’t you? I really do think “liar” is unfair, unless you are also going to call many many many other people, on both sides of this issue, “liars.”

    With all due respect, David, the definition of a lie in the dictionary is NOT “a false statement made with deliberate intent to deceive, except when the statement appears in direct mail.” :-p Brian Brown signs his name to those mailings, and it’s not unfair to hold him responsible for what they say. (Not unlike Ron Paul.)

    I do think it’s all too common – on both the left and the right – to tell apocalyptic lies in direct mailings, and I wish they wouldn’t. It’s a bad habit that encourages partisans (like myself) to demonize opposition and to believe the sky is falling, and in general contributes to coarsening discussion.

    (I have less of a problem with simple boastful exaggerations; for instance, if a politician said “I was a leader in legislation that blah blah,” when actually she was one of 40 co-sponsors, that’s also a lie, but a less harmful one.)

    That said, when it comes to marriage equality, I don’t think the two sides are mirrors of each other. I think the messages of NOM are noticeably more filled with lies, and with attempts to induce panic, then what I’ve seen from the Human Rights Campaign (which is, as far as I know, the closest thing NOM has to a counterpart on the pro-SSM side). The lying I see on the pro-SSM side seems to come more from highly partisan internet discussion boards, but not very much from the major organizations leading the fight.

    Good grief, I don’t think anybody really believes that, fundamentally, such a decision from the SC would only affect CA — notwitstanding all of the (for all I know correct) fine print about its alleged narrowness.

    Of course such a decision from the SC would affect more than just CA; it would set a precedent that other cases would draw on, and it would rightly be seen by folks on my side as a significant step towards an eventual nationwide victory. No one denies that.

    But it would not be “game over.” To my regret[*], it would not force every state across the nation to start recognizing same-sex marriages.

    [*] Said regret tempered by my belief that such a SC ruling at this point wouldn’t be sustainable, anyway.

  35. Christopher says:

    Let me be very clear, I am not asking to change your opinion on marriage equality, but merely to understand in theory and in practice the burdens you are requiring of gay people through your advocacy, legal and social. Is that too much to ask of you?

  36. Christopher says:

    More plainly, your not even knowing the details of federal marriage law as it affects legally married gay couples demonstrates what Fannie described as privilege the other day, and I’d add demonstrates some contempt toward these couples. You’ve researched obscure tribes but don’t know the basics of how federal marriage treats gay people. You say you believe in equal dignity of “homosexual love” but don’t bother to understand the most basic federal law that deals with gay couples. It seems disingenuous. And it makes your protestations of good will, harder to take seriously.

  37. brian says:

    Christopher,

    I agree with 98% of what you say, but your sanctimonious tone is really unbearable.

  38. Christopher says:

    Perhaps Brian. Though I’ve tried extremely polite and deferential tones with David over the years and he isn’t really interested in addressing these issues around DOMA no matter how he is addressed or by whom. Nor has he deemed it necessary to his work, or for himself, to understand the basics of how DOMA or Prop 8 affect gay couples. I find it very difficult to be solicitous when my family’s well being and freedom is at stake. That people freedoms are curtailed or their well being threatened isn’t an issue that David believes he has to responsibility to be aware of. That smacks of contempt to me; our lives font even merit being understood. It is not David’s position on marriage that bothers me or his Prop 8, it’s that he doesn’t deem it important enough to understand how the position he works for affect people in demonstrable, provable ways. I am very tired of being a second class citizen in my own country, aren’t you?

  39. Christopher says:

    Should read “work on Prop 8″.

  40. Phil says:

    There’s a tendency among SSM opponents to believe that there is no such thing as a “narrow” ruling — that when a Court orders “A,” that’s the same thing as the Court ordering “B C and D” because BCD is implied by A.

    I think a related feature of the rhetoric of SSM opponents is to pretend, insinuate, or even directly claim, when X causes Y, that Y was caused by legalizing SSM. This typically happens when X is anti-discrimination laws.

    For example, the Alliance Defense Fund, a well-known conservative organization which litigates, among other things, anti-SSM cases all over the country, produced a 2011 Pamphlet entitled “Same Sex Marriage: Frequently Asked Questions….Reasonable Answers.”

    In it, they ask the question,

    “How can you possibly claim same-sex ‘marriage’ would impact religious freedom?”

    And they provide the answer:

    It is not a claim – it has already happened. Here are just two examples that ADF is litigating:

    …and then they provide two examples: the case of Elaine Huguenin, the New Mexico photographer who refused to photograph a same-sex commitment ceremony, and the Ocean Grove Camp Meeting Association, which declined to rent its facilities to a same-sex civil union.

    It is true that both Ocean Grove CMA and Elaine Huguenin lost in court. It is also a complete falsehood that they lost because of same-sex marriage. In fact, neither New Jersey nor New Mexico allow SSM. Both parties lost their court cases because of anti-discrimination laws that had nothing to do with SSM.

    The National Organization for Marriage provided the following text in its pre-made form letters for its followers to send to legislators in Illinois and Rhode Island:

    Already, the recognition of same-sex marriage and civil unions has threatened the civil rights of religious groups opposed to same-sex marriage, as exemptions prove far to thin for the realities of modern life. Boston Catholic Charities has been deprived of its adoption license; a Methodist group has been denied tax exemption for refusing to permit a civil union ceremony on its property in New Jersey. And this is just the tip of what is sure to be a much larger iceberg.

    They clearly claim that “recognition of same-sex marriage and civil unions” caused Boston Catholic Charities to be deprived of its adoption license. That is simply not the case. The court in Massachusetts ruled that Catholic Charities was in violation of the state’s anti-discrimination law, a law which was passed in 1989, 14 years before SSM became legal in Massachusetts.

    So, when someone like me infers that Maggie Gallagher and Brian Brown and the folks at Alliance Defense Fund are not just “anti-SSM” but are, in fact, anti-gay, there is good reason for that. They lie, openly and publicly, to try to prevent SSM, but their lies expose the fact that they oppose SSM without regard to logic; they just don’t want gays getting more rights.

    Once, in an in-person debate, when someone brought up Elaine Huguenin, I argued that she would have been found guilty even if SSM weren’t legal in her state. My opponent took the bait, and said that there was no way of knowing that.

    Obviously, there is a way of knowing that, because that is how it happened.

    Now, it is possible to argue that anti-discrimination laws lead to bad effects, and use Huguenin, Ocean Grove, and Catholic Charities as examples.

    That is a completely different argument than whether SSM leads to bad effects.

    Is it unreasonable to infer that people and organizations who conflate the two things–antidiscrimination laws and SSM laws–are actually motivated by anti-gay animus?

  41. Ledwhatasmom says:

    Without wishing to start the sort of argument on tone that never leads to anything good, I must ask: what, in the opinion of Brian and David, is the proper tone for someone whose family is being threatened? David, you have said yourself that you have no dog in this fight. Haven’t you read what Christopher is trying to tell you about what is at stake for him? Quoting Christopher:

    It’s because they directly effect my and my families well- being, financial situation (I am a cancer survivor and if I were to die tomorrow (knock wood) my spouse would be filled taxed on his inheritance, including my half of our home as though we were strangers

    (I have added the italics for emphasis)
    Think about what that means – if you were told that your relationship with your wife, a relationship maybe of many years’ standing, of intimacy, of trying to care for each other, meant no more in law than the stranger you pass on the street. And yet you expect Christopher to express himself without anger!
    It’s not my marriage, or your marriage, or the marriage of anyone with an opposite-sex spouse that’s being threatened. It’s Christopher’s. It is no wonder if he finds matters that are intimately close to him more provoking of emotion than David, for example, finds his theoretical musings upon marriage.
    Now, I hope this does not descend into a complete tone argument, but really! Let us have some sense here! That one remains utterly calm is not a sign that one has a superior argument, no more than becoming angry is a sign that one has not.

  42. Phil says:

    For many people that single tax burden would mean selling the home you shared, just after you’ve [lost] your spouse, to pay this tax. A tax not paid by any other married couple. So this is a very serious, very directly personal struggle for me and my family.

    This harm is significant, and I think it is also worth pointing out that it cannot be remedied by a couple getting a lawyer and drafting a contract. Only the government can grant a person the right to inherit a spouse’s property tax-free, and this is a right that the federal government grants to heterosexual married couples but not to same-sex couples.

    When someone argues that gay couples don’t need the right to marry because they can simply make legal arrangements for the rights of marriage, that person should be slapped.

    Naturally, I am not really advocating violence against people who make cockamamie factually incorrect arguments like that.

    But really I am. Slap them.

  43. David Blankenhorn says:

    When I said, “I don’t have a dog in that fight,” I was referring to the issue of releasing the tapes of the trial, not the issue of ssm. I care about this issue a lot; I’ve spent years of my life on it; I think the stakes are high; and it’s personal for me too.

    It’s not true that I don’t know what DOMA is or don’t care about DOMA or have no thoughts about DOMA; Christopher (and now others on this thread) keep saying this over and over; I can’t recall where it originates; maybe at some point I spoke too loosely or unclearly or too casually about it on this blog, but my guess (simply relying on memory) is just that I didn’t want to be pinned down into speaking publicly and prescriptively about it at the time that the question was being asked (esp. since it was not part of my book and not part of my testimony). I think it’s reasonable that I remain in charge of what I talk about, not hand that job over to Christopher or anyone else who thinks that he knows better than I do what I should talk about and when.

    On the rest, including the debate about tone, I think I’m gonna take a rest, at least for now.

  44. La Lubu says:

    Only the government can grant a person the right to inherit a spouse’s property tax-free, and this is a right that the federal government grants to heterosexual married couples but not to same-sex couples.

    This is also true for other federal benefits, such as Social Security and veteran’s benefits.

  45. Peter Hoh says:

    David, I’m not comfortable claiming that the push for recognition of same-sex marriage is the same as the struggle for Civil Rights, but I’m not willing to dismiss the idea, either. There are limits to the degree to which we can find neat parallels in history.

    I thought I knew all about the Freedom Riders. The documentary had bits of information that were new to me. The elders telling the Freedom Riders that they should back down, for instance. The tacit agreement between the Kennedy administration and Mississippi was something else that I had not known. (Mississippi agreed that there would be no violence, but that the Freedom Riders would be jailed. The conditions of their confinement were barbaric. While the Kennedy administration didn’t sign off on that part, it seems that they didn’t mind seeing the Freedom Riders suffer.)

    The Freedom Riders were pushing hard, maybe too hard, but they were right to do so. And the change they fought for was long overdue.

    I’m not sure that it’s my place to tell Christopher that he has to wait any longer for the kind of security that the government extends to my family — and to Gingrich and his most recent mistress. (I know, I can’t resist taking swipes at Newt, but the real and permanent harm of that kind of marriage seems obvious, and yet he’s counted as a supporter of traditional marriage. Christopher’s marriage, on the other hand, isn’t built on the destruction of another marriage.)

    If there were some other way to remedy the inequality faced by families like Christopher’s, I’d jump on it. I think the courts might, too. I don’t see how the courts could enact a civil unions compromise, and I don’t see any legislative willingness to do this, either. (As an aside, whose endorsement of this idea would actually put it in play? I can’t think of any group or person who is in that position.)

    I heard (or read) that national gay rights groups urged Boies and Olson to push for a narrower case — the idea that Prop 8 was unconstitutional, not that denying recognition of same-sex marriage was unconstitutional. Denying cert, or affirming the 9th Circuit’s ruling would be a narrow victory. I don’t think the Supreme Court is willing or ready to step up and declare that prohibitions on recognizing same-sex marriage is unconstitutional across the board.

    I suspect that Roberts knows that same-sex marriage is here to stay, and that eventually, if DOMA isn’t overturned through legislation, the court will throw it out. But I don’t think he wants to do it just yet.

    I believe that legislative victories are the way to go. Washington is likely to affirm the legislature by statewide ballot. Minnesota may well be the first state to reject an amendment that restricts recognition. I think these will be a good developments, politically. But they won’t do enough, and I get that, too.

  46. Christopher says:

    David, Here’s my question to you from 11/8/11 and your response from 11/11/11.

    CG: “My first reaction is “Thank you David”. And Jonathan too. It is very well done. Kudos. There are a couple of things I wonder from this piece though, you both ask for “protections at work” for traditional marriage supporters and yet don’t address the fact that gay people, married, partnered, or single can still br fired for being gay in 29 states and that there are no protections at all on the federal level. I know you support those David, but not saying it then and there is a huge missed opportunity and it would have been so easy to do. One other important bit – DOMA and federalism- you (both) say – that “diversity that comes from states is more desirable than uniformity from the federal branch”. Bit section 3 of DOMA invalidates Jonathan and his husband and every other gay couple’s marriage in federal law. The first and only time in US history the federal government has refused to recognize legal marriage from the various states. Are you saying that should be struck down/repealed and that J’s marriage should be equally valid in federal law. Federal law certainly is uniform in rejecting all marriages of gay couples now via that part of DOMA. Having asked about those issues – thank you again for this piece!”

    DB: “To the commenters so far: thank you so much for your good comments. Christopher: You raise a point I don’t know about and haven’t thought about. I will do so, and try to respond soon.”

    You said you weren’t aware of that provision of DOMA three months ago and though it is part of parcel of your claim in the piece you wrote with Mr. Rauch, you don’t mention it there either. (Ive never heard you mention it here and you said very specifically three months ago that you were “not aware of that”.) So, it’s pretty hard for you to claim now that you were.

    It brings to mind the “I-never-read Rekers-oh-ok-yes-fine-I-did read Rekers-but-I-didn’t-inhale” two-step (played to the tune of “If You Knew Susie”) that was popular in 2010.

    Speaking of Rauch, for an excellent overview of the narrowness of this decision, I’d suggest reading his piece on the subject in today’s NY Daily News. http://www.nydailynews.com/opinion/gay-marriage-ruling-california-politically-shrewd-article-1.1019338?localLinksEnabled=false

    Of course you can speak on anything, anytime. History will be the judge of the efforts surrounding these laws, not me or anyone here.

    As for this fight being personal to you, tell me that when you ask the same sacrifices in the law and in liberty of your own family that you want to require in the law and liberty of mine.

  47. Christopher says:

    I will say and this will be a surprise I think, I agree with Rauch on strategy. As frustrating as it is to me personally, I am glad for a narrow ruling on this. We are an incrementalist country on civil rights issues and always have been. That is our pace. (I also think the gay civil rights movement is much closer to the women’s rights movement in argument and I’m history than to the African-American civil rights movement.). A sweeping judgment on marriage equality from SCOTUS is 12 – 14 years away, after 32 or 33 states legalize marriage equality. That’s very frustrating but it’s also a good thing for the country as a whole – whenever possible consensus is always better than division (see the
    history of DADT). I try to keep Adrienne Rich’s phrase in mind: “A wild patience has taken me this far”.

  48. Myca says:

    The best explanation of the decision I’ve read thus far: http://prospect.org/article/government-has-give-reasons

    “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.”

    The reasons offered in the arguments for prop 8 barely clear the ‘excuse’ bar and shockingly short of the ‘good reason’ bar.

    Simultaneously, the removal of an existing right (as the California Supreme court determined marriage was), as opposed to just not granting a right, makes it ‘government wants to do something to you.’

    That it seems motivated entirely by anti-gay animus makes it ‘government wants to do something really bad to you.’

    As the article points out:

    Under a long line of Supreme Court cases, “we don’t like your kind around here” is the one “interest” we know is illegitimate.

    —Myca

  49. Michael says:

    Hmmm…. the Court’s decision is saying that once a right to gay marriage has been given, even by judicial fiat, it can almost never be taken away. Reminds me of the Brezhnev doctrine that once a country has gone Communist, that status can never change. Well, the Brezhnev doctrine didn’t last and hopefully the gay marriage edict won’t either.

  50. Myca says:

    Hmmm…. the Court’s decision is saying that once a right to gay marriage has been given, even by judicial fiat, it can almost never be taken away.

    No. No, it’s really not.

    The court’s decision is saying that you must provide good reasons to take a right away. That so many SSM opponents see this as functionally identical to, “almost never taking the right away,” says a lot about how good their reasons are.

    And remember, “marriage has always been one-man one-woman isn’t a good reason.” As the article points out:

    The government can’t deny constitutional rights on the grounds that “we just always did it that way.” Government has to give a reason.

  51. JeffreyRO5 says:

    I don’t think the legal rights of a minority should ever be put up to a vote, especially when the majority votes to reserve a right for itself, but deny it to the minority. It is completely arbitrary to say that marriage has to be between only a man and a woman. There may be religious roots or animosity roots to the belief, but that doesn’t make it any less arbitrary.

    Instead of building coherent explanations for why marriage must be reserved for straight people, anti-gay marriage proponents instead choose the legislative method that best serves their goal of restricting marriage to straight couples: getting the people to vote on it. It’s clever, somewhat, in the short term, but with the people growing more accepting of equal legal rights for gays and lesbians each day, with the anti-gay marriage people go away when more and more states vote for gay marriage (or vote down propositions and amendments against it)? It will be interesting to see what the tipping point will be for them to let go of the issue.

  52. Michael says:

    To put it mildly, there’s a profound disagreement on the definition of marriage between traditionalists and progressives. Traditionalists believe that there is a complementary difference between men and women that is transcended into a unique wholeness in a marriage. Progressives believe that any “gender differences” are an artifact of social conditioning and that men and women are basically the same; hence no rational basis exists for defining marriage as between a man and a woman.

    There is a profound disagreement on this issue and the best place to resolve it is at the ballot box, not the courts. That’s how democracy works.

  53. JeffreyRO5 says:

    I don’t think there’s a difference of opinion of what marriage is. I think both sides believe that marriage a legal commitment between two adults. At issue is WHO is allowed to marry, not what marriage is. This issue has shocked me in that it has brought out the most inane arguments, most if not all artificial, and used as disguises for something that I suspect is ugly and therefore needs to be hidden from view with a pretty veneer. The victims of this fight are many: gay and lesbian couples who remain marginalized; there children, who remain insecure in their families; childless couples who are told that their marriages are sham, because, evidently, marriage is about children; judges, whose job it is to determine the constitutionality of laws; straight people who know or love a gay person in a committed relationship, and would like to see that person find peace and security in marriage. And finally, the observation that religion and religionists have become hateful and bigoted, and want to interfere with the private lives of strangers. That’s a lot of wreckage over a minor issue.

    It makes no sense to say the people should vote on this issue. That method is only appealing so long as you can muster a majority against it, I suspect. I’m sure the anti-gays will insist that courts intervene once it becomes commonplace for the people to vote in favor of equal legal rights for gays and lesbians. In a representative democracy, legislatures are the voice of the people, and there should be no backlash against legislatures that approve same-sex marriage. And there should certainly be no bad-mouthing of judges doing their jobs. That NOM would orchestrate the dismissal from their jobs of three Iowa judges is disgraceful and was accomplished, as was the passage of Prop 8 in California, by airing knowingly false ads.

    Mostly I can’t understand why anyone would care enough about this issue to expend so much money and energy, tell so many lies, and create so much havoc in the lives of so many, in order to stop loving committed gay couples from getting married. It’s inexplicable to me.

  54. JeffreyRO5 says:

    The anti-gays only want this issue decided by vote because they believe that is the method that will most successfully achieve the outcome they want, not because they think that it is, on principle, the right thing to do. The Prop 8 ad campaign, filled with lies appealing to homophobia, reveals that the anti-gays will stop at nothing to get people to vote down same-sex marriage. It’s shocking, really. Why is this issue so important? Can someone please tell why anyone would care who marries whom?