an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jason Mazzone asserts that the Ninth Circuit's decision yesterday in Perry v. Brown was "dishonest and foolish." It is neither. Judge Reinhardt's rationale did not, as Jason argues, rest upon any misreading of Romer v. Evans, nor did the panel hold, as Jason would have it, that "if the state gives you something it can't later take it away." Moreover, in declining to reach out to decide whether a state can ever limit civil marriage to heterosexual couples, the panel not only did not act foolishly; it acted appropriately, since resolution of that question--one that would affect the marriage laws in many states--was not necessary in order to resolve the case. (For the proposition (pp. 5-6) that “[b]roader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions only in the context of the particular case before the Court," Judge Reinhardt provides a lone, apt citation, one that I commend to Jason and others who are so eager to have the courts resolve momentous and deeply contested legal questions in one fell swoop, even where the case in question does not require such resolution.) According to Jason, the opinion was "dishonest" because "Judge Reinhardt's opinion for the 2 judge majority today says, in essence, that Proposition 8 violates the federal Constitution because Romer prohibits states from taking away (without some rational reason) protections . . . that the state has previously given to a class of people." That's a willful mischaracterization of the "essence" of the opinion.
To hear Jason tell it, Judge Reinhardt concluded that this case was on all fours with Romer v. Evans, and thus no further analysis was necessary: "Reinhardt claims [that] Proposition 8 is (almost) exactly like Amendment 2 which the Court struck down in Romer--and therefore the panel has no choice but to strike down Proposition 8." Moreover, Jason accuses Judge Reinhardt of reasoning that the constitutional infirmity in this case, and in Romer, was simply that the state can't withdraw any benefit it has previously afforded:
Romer doesn't stand for the freewheeling proposition that if the state gives you something it can't later take it away. . . . Reinhardt's interpretation of Romer cannot be correct in a constitutional democracy. For it would mean that if a court construes a constitution to require the state to give a right to some class of people, it is necessarily unconstitutional to amend the constitution to overturn that ruling. Judges could, in other words, render their own interpretations of constitutional provisions immune to correction. No plausible reading of Romer contemplates that.
Jason is, of course, correct: Romer cannot plausibly be read for the grossly overbroad proposition "that if the state gives you something it can't later take it away." And therefore it's not surprising that Judge Reinhardt suggests no such implausible reading of Romer. (By contrast, Perry and Romer both do suggest a much narrower and more defensible basis for distinguishing in particular cases between failures to afford benefits and withdrawals of previously conferred benefits--as Mike Dorf stresses, in some cases "[t]aking away a right can be unconstitutional where failing to extend it in the first place is not, because taking away may reflect animus to some group of people, whereas failing to extend may simply reflect indifference or legislative inertia." Cf. Pico.)
Judge Reinhardt does not argue that Prop 8 is on all fours with Colorado Amendment 2 from Romer--indeed, he goes out of his way on page 45 of the opinion to identify the principal differences between the two initiatives. He does, however, identify five important similarities (pp. 44-45) between the two cases, only one of which is that the state withdrew a previously conferred right:
Like Amendment 2, Proposition 8 singles out a class of citizens for disfavored legal status. Like Amendment 2, Proposition 8 has the "peculiar property" of "withdraw[ing] from homosexuals, but no others," an existing legal right--here, access to the official designation of 'marriage'--that had been broadly available notwithstanding the fact that the Constitution did not compel the state to confer it in the first place. Like Amendment 2, Proposition 8 denies "equal protection in the most literal sense," because it "carves out" an "exception" to California's equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee. Like Amendment 2, Proposition 8 "by state decree . . . put[s] [homosexuals] in a solitary class with respect to" an important aspect of human relations, and accordingly "imposes a special disability upon [homosexuals] alone." And like Amendment 2, Proposition 8 constitutionalizes that disability, meaning that gays and lesbians may overcome it "only be enlisting the citizenry of the state to amend the State Constitution for a second time." (All quotes are from Romer.)
Jason excerpts this same paragraph the Perry opinion in his post . . . but he distorts it. First, he eliminates the quotation marks, thus obscuring just how closely Judge Reinhardt hews to Justice Kennedy's opinion in Romer. He also fails to acknowledge that in the opinion's very next paragraph, Judge Reinhardt acknowledges the principal differences between Amendment 2 and Prop 8.
Most egregiously, Jason inserts an elipsis toward the end of block quote, which leaves the reader with the impression that Judge Reinhardt's analysis began and ended by identifying the five similarities with Romer. The relevant paragraph in Judge Reinhardt's opinion concludes with this sentence: "As we explain below, Romer compels that we affirm the judgment of the district court." Jason intentionally omits the phrase "As we explain below," thereby suggesting to the reader that the Romer/Perry similarities were the be-all and end-all of Judge Reinhardt's analysis. But they weren't. Not even close. As Judge Reinhardt explained, that's only the beginning of the analysis:
Proposition 8, like Amendment 2, enacts a “‘[d]iscrimination[ ] of an unusual character,’" which requires “‘careful consideration to determine whether [it] [is] obnoxious to the’“ Constitution. [Romer] at 633 (quoting Louisville Gas & Elec. Co. v.. Coleman, 277 U.S. 32, 37–38 (1928)). As in Romer, therefore, we must consider whether any legitimate state interest constitutes a rational basis for Proposition 8; otherwise, we must infer that it was enacted with only the constitutionally illegitimate basis of “animus toward the class it affects.” Romer, 517 U.S. at 632.
Judge Reinhardt then proceeds to spend more than 22 pages (55 to 77) carefully evaluating whether any of the state interests asserted by the initiative proponents and their amici satisfy this rational-basis test. You wouldn't know it from Jason's misleading post, but these 22 pages of careful ratonal-basis analysis are the "essence" of the opinion.
In those pages, Judge Reinhardt concludes that none of the purported interests satisfies the rational-basis test. (Therefore the court--like the Court in Romer--had no occasion to decide whether heightened scrutiny applies to discrimination on the basis of sexual orientation.) It is perfectly fair to debate whether the panel was correct as to its rational basis review of each argument. (Of course, even if one were to conclude that there are one or more rational bases on which Proposition 8 could be justified, that would not mean that Prop 8 is constitutional--such a conclusion would merely tee up the question of whether discrimination on the basis of sexual orientation is subject to heightened scrutiny (which Prop 8 almost certainly could not satisfy). The court's narrow decision in Perry has the added virtue of avoiding the need to reach this significant open question, too.)
But here's where Jason makes his second fundamental mistake. Jason appears to assume that Judge Reinhardt just as easily could have--and should have--resolved whether any and all bans on same-sex marriage violate equal protection. That's wrong in at least two respects. First, as any careful reader of the opinion will notice, Judge Reinhardt's analysis is, in many respects, dependent upon the fact that California had already provided gay couples in "civil unions" with all of the benefits of marriage except the status of state-sanctioned "marriage" itself. The analysis would have to be much different with respect to a state that does not confer such equality of benefits to civil unions. Judge Reinhardt does not engage in such analysis -- and would have been irresponsible to have done so, since no such state was before him.
Moreover, the rationale of his opinion does not even resolve the constitutionality of the marriage question in all states that recognize civil unions but not same-sex marriages. According to some observers, such as Eugene Volokh, to uphold the Reinhardt opinion is effectively to constitutionalize same-sex marriage in all such states:
The Ninth Circuit’s opinion also stresses that same-sex marriage was once recognized (by court decision) and then derecognized (by the voters). If the opinion is limited to such situations, this would mean that its logic would only be applicable to California, and possibly Hawaii. But I don’t think that the opinion’s logic can be so limited. The court reasoned that same-sex couples can’t be denied the same right that opposite-sex couples have — the right to have their relations recognized as “marriage,” at least once they have the same tangible rights under state civil union law. But that denial would be present regardless of whether (1) the label “marriage” was once given and then taken away or (2) was never given in the first place. In either case, a benefit (the label “marriage”) is given to some but denied to others. Either way, opposite-sex couples would have a right (to the label “marriage”) that same-sex couples would not. Such a discrimination would have to be rationally related to a legitimate government interest. And under the Ninth Circuit’s reasoning, such a rational relationship is absent here, which would doom all state regimes that recognize civil unions but not same-sex [marriages].
That's not correct. To be sure, although much of Judge Reinhardt's analysis would appear to apply equally to a civil union state's refusal to extend the status of marriage to same-sex couples in the first place, Judge Reinhardt explains that there is at least one state interest that (i) might satisfy rational basis review in a state that has decided not to extend marriage to same-sex couples, but (ii) that plainly does not satisfy rational basis review when the state has withdrawn the right to marriage from gay couples.
The initiative proponents argued that affording the official status of "marriage" only to heterosexual couples could be justified under rational-basis review because the state has an interest in inducing couples "capable of accidental reproduction" to wed. The only couples to whom this state interest applies are opposite-sex couples--they are the only ones in need of the marriage inducement for this reason. Judge Reinhardt reasons that this distinction might be a constitutional justification for extending the status of marriage only to such couples--a question he need not and does not decide--but that it cannot provide a rational basis for reaching out and stripping same-sex couples of a marriage right that was already theirs. This is the key paragraph on pages 58-59, which explains why the panel's decision consists of such a limited holding, one that depends upon the fact that California withdrew the benefit in question:
Proponents' second argument is that there is no need to hold out the designation of ‘marriage’ as an encouragement for same-sex couples to engage in responsible procreation, because unlike opposite-sex couples, same-sex couples pose no risk of procreating accidentally. Proponents contend that California need not extend marriage to same-sex couples when the State's interest in responsible procreation would not be advanced by doing so, even if the interest would not be harmed, either. See Johnson v. Robison, 415 U.S. 361, 383 (1974) (“When ... the inclusion of one group promotes a legitimate governmental purpose, and the addition of other groups would not, we cannot say that the statute's classification of beneficiaries and nonbeneficiaries is invidiously discriminatory.”). But Plaintiffs do not ask that marriage be extended to anyone. As we have by now made clear, the question is whether there is a legitimate governmental interest in withdrawing access to marriage from same-sex couples. We therefore need not decide whether, under Johnson, California would be justified in not extending the designation of ‘marriage’ to same-sex couples; that is not what Proposition 8 did. Johnson concerns decisions not to add to a legislative scheme a group that is unnecessary to the purposes of that scheme, but Proposition 8 subtracted a disfavored group from a scheme of which it already was a part.
I find this reasoning to be quite sound, and it explains why the panel was right not to opine on whether a state can constitutionally confer the status of marriage only on straight couples as an initial matter--a much closer question, and thus one better reserved for a case that requires its resolution.
I should note that Mike Dorf thinks the panel's distinction as to this purported state interest is "highly contestable": "[W]hy can't the state notice that it has bestowed the word marriage when it did not need to, and take it back?," Mike asks. Well, under the panel's analysis, the state can perform such a "retraction of unnecessarily conferred benefits," but only if it has a rational basis for doing so. So, for instance, if the benefit in question were, in Mike's words, a "limited resource," such as dollars from the state fisc, it might be rational for the state to take back the money from beneficiaries on whom the money need not have been bestowed in the first instance. But the hypothetically "unnecessary" conferral of the right to marriage on gay couples presumably cost the State of California nothing--it is not a "limited resource." Therefore California would need another rational basis for reaching out to retract the right from such couples. But the only such reasons the court could identify were predicated on impermissible animus. Posted
by Marty Lederman [link]