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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
My initial reaction to the Ninth Circuit panel's decision today in Perry v. Brown is that it is dishonest and foolish. It is dishonest because it warps the relevant background and misrepresents Romer v. Evans to reach the conclusion that Romer requires invalidation of Proposition 8. It is foolish because it misses--indeed evades--a ripe opportunity for a straight-up ruling that a ban on same-sex marriage violates the federal Constitution, a ruling that has a better than even chance of being upheld by the Supreme Court.
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--in this case the right to marry--that the state has previously given to a class of people. In reaching this decision, Reinhardt specifically declines to say whether a ban on same-sex marriage violates the Constitution. He writes:
Whether under the Constitution same-sex couples may ever be denied the right to marry . . . is an important and highly controversial question. . . . We need not and do not answer this broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of 'marriage,' and Proposition 8's only effect was to take away that important and legally significant designation.
No need to decide the larger question, Reinhardt claims, because Romer clearly renders Proposition 8 unconstitutional. Indeed, Reinhardt claims, 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. Reinhardt says:
Like Amendment 2, Proposition 8 singles out a class of citizens for disfavored legal status. Like Amendment 2, Proposition has the peculiar property of withdrawing 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 puts 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. . . . Romer compels that we affirm the judgment of the district court [invalidating Proposition 8].
The problem is that Proposition 8 is nothing like Amendment 2 in Romer. Reinhardt throughout his opinion presents Proposition 8 as a measure that undid rights that California once gave to same-sex couples--in the same way that Amendment 2 undid protections that municipalities in Colorado gave to gays and lesbians. But the origin of the right to marriage in California was the California Supreme Court which read that state's constitution to require the state to allow same-sex couples to marry. Proposition 8 amended the California constitution to overturn the state court's interpretation of the state constitution. Romer by contrast was about about a constitutional amendment to overturn a whole series of protections obtained through the political process.
Moreover, Romer doesn't stand for the freewheeling proposition that if the state gives you something it can't later take it away. The Romer Court's problem with Amendment 2 was that it eliminated a vast array of protections secured through the political process--and then required gays and lesbians (but nobody else) in order to secure new protections first to amend the state constitution.
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.
Reinhardt's opinion is obviously written for Justice Kennedy ("See, Tony, what California has done is just what you said Colorado couldn't do!"). But it strikes me as most unlikely that Kennedy would adhere to Reinhardt's twisted version of Romer to invalidate Proposition 8.
Here, then, is why the the panel's decision today is so foolish. The panel could have written a powerful opinion setting out why a ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment. That was why this litigation was brought and despite Reinhardt's invocations of judicial modesty nothing prevented the panel from ruling Proposition 8 unconstitutional on that basis. We would then have had a circuit court opinion with that issue teed up for review by the Supreme Court.
There is, in my judgment, a reasonable chance that five justices would affirm such a ruling. For if that issue of marriage discrimination and equal protection were presented squarely to the Court, I find it unlikely that Justice Kennedy--author of Romer and Lawrence and deeply concerned about his place in history--would join a decision holding a ban on same-sex marriage constitutional. The risk now is that Kennedy will disagree (quite rightly) with the Ninth Circuit's panel use of Romer, reverse on that basis, and, like Reinhardt, avoid the plain equal protection issue.
Of course, the litigation isn't over yet. The Ninth Circuit en banc could rule on a broader basis (or not) than did the panel. On review to the Supreme Court the parties could ask for a broader ruling. The Court itself could rule on grounds different from those presented by the circuit court or by the parties. But today's panel decision, which will be celebrated as a step forward to marriage equality, appears to me a half-step back.