Wednesday, February 08, 2012

Marriage and the Ninth Circuit: Collateral Damage

Jason Mazzone

In his opinion yesterday in Perry v. Brown, Judge Reinhardt devotes 15 pages to explaining why reasons offered in support of Proposition 8 (childrearing and responsible procreation, proceeding cautiously, protecting religious freedom, and preventing children from being taught about same-sex marriage in schools) are irrational. He then concludes that, absent any such legitimate reason, Proposition 8 must have arisen out of animosity toward or disapproval of gays and lesbians and such motivations cannot sustain the law. Yet by focusing the equal protection analysis on the revocation of previously existing rights, Reinhardt unintentionally puts on the table another, potentially legitimate, explanation for Proposition 8 apart from animosity and disapproval. The marriage right that existed for a short period in California arose because the state supreme court read the state constitution to require the state government to extend marriage to same-sex couples. Given that context (which Reinhardt ignores), Proposition 8 could reasonably be understood as the people of California correcting the state supreme court's interpretation of the state constitution. Somebody in favor of same-sex marriage might at the same time be opposed to judges decreeing it--and therefore have voted for Prop 8. To be sure, a "pure correction" of the state court's decision would have been a proposition specifying that no provision of the state constitution requires the government to extend marriage to same-sex couples, thereby leaving the issue to the legislature to decide in the normal course of politics. But Californians angry at what they perceive to be an activist court (and yet generally in favor of same-sex marriage) might well have endorsed stronger medicine (no same-sex marriage in the state at all) in order to push back firmly against overreaching judges. Reinhardt sees no rational reason for Proposition 8. But his own approach in the Perry decision appears actually to create one.

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