I‘ve now had more of a chance to read the full ruling from the 9th Circuit Court of Appeals that upheld the lower court ruling overturning California’s Prop 8, as have many legal scholars. The consensus seems to be that Judge Reinhardt made the ruling deliberately very narrow in order to prevent it from being overturned by the Supreme Court — and particularly in order to woo Justice Kennedy’s support if they do grant cert. Here’s Orin Kerr:
Based on a quick skim, 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 AMK 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.
I think that’s exactly right. So does Lyle Denniston:
But he also points out something very interesting. The fact that Prop 8 denied the title of marriage to gay couples but still allowed all of the rights of marriage under a different name clearly undermined the rational basis for the law:
By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court. However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.
In Judge Reinhardt’s explicit effort to keep the decision narrow, the majority opinion stressed that same-sex couples had all of the legal rights as opposite-sex couples – before Proposition 8 was enacted. Thus, it concluded, the ballot measure “had one effect only” — that is, “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 relationships. Nothing more, nothing less.”
As a result, Reinhardt wrote, the ballot measure “could not have been enacted to advance California’s interests in child rearing or responsible procreation, for 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.”
This is an important point. It was essentially impossible for those arguing in favor of the law’s constitutionality to come up with a rational basis for the law because, even if you grant all those absurd arguments about undermining the family, the fact that none of those things would actually change by implementing Prop 8, only the name of the union would change, undermines the validity of that argument.