Tuesday's decision of the three judge panel for the Ninth Circuit court (which covers the western states of the United States) declaring California Proposition 8 as unconstitutional still leaves many murky issues about the constitutionality of same sex marriage. The 89 page decision endorsed by two of the judges (Stephen Reinhardt and Michael Hawkins) was, constitutionally, fairly narrowly construed. It did not rule on whether, as such, there is any constitutional right to same sex marriage. Nor did it judge whether laws in other states, besides California, which outlaw same sex marriage are unconstitutional.
The ruling drew on two realities rather specific to California and not likely to be found in other states. The Court based its decision fairly closely on a 1996 Supreme Court decision (6-3), Romer vs. Evans, which outlawed a Colorado referendum which rescinded anti-discrimination rights for gays (in housing and employment) which had been already granted by several municipalities in Colorado. That Supreme Court decision made a crucial distinction between an initial "withholding" of rights (perhaps, even those which were not, as such, mandated under the Federal Constitution's equal protection clause, the Fourteenth Amendment) and, secondly, an actual "rescinding" of rights already granted. The latter needs a stronger sense of a compelling governmental interest to be legal and constitutional. A bill that targeted a minority group, as such, to remove already granted rights from them, Romer argued, violated the Fourteenth Amendment, if they targeted that minority group alone, without any other compelling governmental imperatives.
Prior to the passage of California's Proposition 8 (which was a constitutional amendment and not a mere referendum, establishing law and which stated that "marriage was between a man and a woman"), California's Supreme Court invalidated an earlier referendum (which was a mere law and not a constitutional amendment) outlawing same sex marriage. For 143 days, same sex marriage was legal in California and 18,000 same same sex marriages were legally recognized. So, for that period of time, a right to marry and to have their union called a marriage was granted to same sex couples. Proposition 8, then, amended California's constitution to make explicit that same sex couples could not be said to be "married." According to the Ninth Circuit Court's reasoning, an anomoly is that, had Proposition 8 been passed before the California Supreme Court decision, it would have been valid law or, at least, not subject to tests flowing from the Romer decision. Proposition 8 did not in any way rescind the previous California statutes allowing same sex domestic partnerships or civil unions. These carried all of the ordinary rights and privileges of a marriage except the name.
The Court argued that the only purpose of Proposition 8 was to withdraw the term "marriage" from same sex couples. It saw this as an attempt to lesson the status and human dignity of a minority (gays and lesbians) and to show that their relationships were inferior. In point of fact, Proposition 8 had no effect, in state law, on procreation or the raising of children by same sex couples, no impact on religious freedom or parental control over their children's education. These had been adduced as compelling state interests by proponents of Proposition 8 who wanted the court to uphold its constitutionality.
The narrow constitutional grounds of the court's decision (distinguishing between "withdrawing" a right from a minority versus the mere "withholding" of a right and also relying on the fact that, in California, same sex couples in civil unions already enjoy all of the rights of marriage granted to opposite sex marriages except the name, makes it very unlikely that this California precedent will have any further impact on other states' laws. The majority ruled that, in the California case, there was no legitimate state interest to withdraw the term "marriage" from same sex couples as Proposition 8 did. The majority opinion noted that there is a big difference, symbolically, between "marriage" and "domestic partnership," even opining that no one would have wanted to see the Marilyn Monroe film, "How to Marry a Millionaire" if it had been entitled, "How to Get a Domestic Partnership with a Millionaire"! Both proponents and opponents of Proposition 8 had argued that the term, marriage, carried a strong symbolic weight. The court decided that there was no compelling reason, except to downgrade the status and dignity of same sex couples, to deny the term to same sex couples.
The dissenting judge, N. Randy Smith, in his 39 page dissent, contested the majority's reliance on Romer vs. Evans. He argued that the range of rights denied in that case was much broader than that found in Proposition 8. He also felt that, in any case of doubt about a possible compelling state interest, the Federal Courts should exercise more judicial restraint on overturning state laws. His final argument may not be as strong in the California case. He claimed that "the family structure of two committed biological parents--one man and one woman--is the optimal partnership for raising children." Even if that can be shown empirically, usually or always (it is, perhaps, difficult to do so), it has little bearing on the California case. The majority took up that objection and said it was in no way adjudicating on the factuality of it, since, in point of fact, California law already fully recognized the parental rights of same sex couples. There was no compelling evidence that allowing same sex couples to marry would have any noticeable impact on the fidelity, parenting or, in any other way, on "the harmonious, loyal, enduring and intimate relationship" of opposite sex marriages.
Those unhappy with the decision can appeal for an en banc decision of the Ninth Circuit Court (which would entail a majority of active judges in the circuit to vote to rehear the case). It seems unlikely that will happen. The second recourse is to the Supreme Court which would entail four judges voting to hear the case. The reasoning of the Ninth Circuit seemed closely tailored to appeal to Judge Anthony Kennedy who wrote the majority opinion in Romer. In the interim, the Court has put a stay on acting on its opinion until the opponents of it have time to appeal to the Ninth Circuit Court.
An anomoly is that it is not at all clear that, should this ruling stand, it would mean that California would have to recognize same sex marriaages from out of state since California's present law merely "withholds" that privilege and has never granted, then rescinded, it.
John A. Coleman, S.J.