February 8, 2012
On my office door is a cartoon by Luckovitch for the Atlanta Journal-Constitution. It’s a church wedding. The minister, at the altar, is calling down the aisle to the couple. “One step forward, two steps back, now three forward, one back . . . .” In one of the pews, someone is saying “Gay weddings take forever.” This week’s marriage equality decision in Perry v. Brown (9th Cir. Feb. 7, 2012) is a lot like that. It takes a very small step forward and a large step sideways towards marriage for same-sex couples in California. And it’s a good thing, too.
The panel majority, in an opinion by Stephen Reinhardt, upholds District Court Judge Vaughan Walker’s expansive decision below, Perry v. Schwarzenegger, 704 F.Supp. 2d 921 (N.D. Cal. 2010) on the narrowest conceivable grounds. Walker struck down California’s Proposition 8 – which amended the state constitution to provide that only a marriage between and man and woman would be valid and recognized in California – on broad constitutional grounds. Walker held that marriage is a fundamental right protected by the Due Process Clause. Also, he found there is no rational basis for limiting the designation of “marriage” to opposite-sex couples, under an Equal Protection rational basis analysis. Walker buttressed his conclusions of law with some eighty findings of fact. Upholding Walker’s decision on these grounds would have been both a big step forward towards the wedding and an invitation to be thrown out of the church altogether. For it would have invalidated opposite-sex only laws throughout the Ninth Circuit and would have invited early Supreme Court review.
Instead, the Ninth Circuit panel upheld the District Court narrowly and precisely. California’s situation was unique, it said, because of the prior determination by the California Supreme Court that the state constitution required including same-sex couples within the term “marriage”. It was this determination that Proposition 8 reversed. Thus, a constitutional right once extended had been withdrawn from a narrowly targeted group. That required a rational basis. And the court found there was none.
The principal authority for this narrow Equal Protection approach was Romer v. Evans, 517 U.S. 620 (1996). Romer struck down a broad state constitutional amendment that withdrew a number of local and state protections for gay men and lesbians. Perry v. Brown is peppered with citations to Romer. It also relies at crucial points on U.S. Dept. of Agriculture v. Moreno , 413 U.S. 528 (1973), which struck down a narrowing of eligibility for food stamps for failure to provide a rational basis under Equal Protection review. Of note, while Perry v. Brown stresses the constitutional dimension of the right withdrawn by Proposition 8, Romer and Moreno involved various statutory and administrative rights that were withdrawn. So there’s a tad of breadth here. Enough, perhaps, to make Perry v. Brown relevant in Washington State, should that state enact a marriage equality law and see it overturned by the anticipated attempted ballot referendum.
The linchpin of Perry v. Brown, once the standard of review is set, is its rejection of four proffered justifications for Proposition 8, under rational basis review. And a different judge under the same standard might view a different withdrawal differently. Indeed, in Perry v. Brown, the dissenting judge, N.R. Smith, found that two proffered justifications did meet the rational basis standard, and so would have upheld Proposition 8. These were “a responsible procreation theory, justifying the inducement of marital recognition only for opposite-sex couples, because it ‘steers procreation into marriage’ because opposite-sex couples are the only couples who can procreate children accidentally or irresponsibly; and (2) an optimal parenting theory, justifying the inducement of marital recognition only for opposite-sex couples, because the family structure of two committed biological parents –one man and one – woman – is the optimal partnership for raising children.” In my view both justifications fall somewhere between full of holes and downright silly. Nevertheless, some judges will buy the fact that some legislature bought them. That’s rational basis review for you.
Not coincidentally, Romer was authored by Justice Kennedy. Should this case find itself under review by the United States Supreme Court, it might matter a great deal what precedent it relies on, especially to Justice Kennedy. This is a narrow decision and is as likely to be sustained as anything I can think of that might have come out of this litigation. It is of course up to the proponents of Proposition 8, who are now defending the litigation (the state declined to), whether to seek rehearing en banc or directly petition for certiorari. But the decision is so narrow, on its own terms and in its applicability – to California alone, at this point – that it’s not the kind of case the Court is likely to jump at the chance to review. I suppose that an en banc decision might transform the panel decision into something grander and, by the same token, more tempting to review and reverse.
In short, the very narrowness of the decision is part of its strength. It’s the big step sideways. In the next year or two, we will probably see about three states adopt marriage equality by statute or referendum – Washington state almost certainly, Maine likely, perhaps Oregon, Maryland, or Rhode Island. New Jersey alas is stuck in the never-never land of civil union, despite likely passage of a marriage equality bill in the state legislature, which Governor Christie has vowed to veto. Christie has said he believes the question should be put to public vote in a referendum. Of course he also said the 1960s would have seen much less unrest if those civil rights issues had been put to a vote instead of taken to the courts and the legislature. (I am not making this up.) Various administrative initiatives at the federal level will also make LGBT individuals and couples more welcome, visible, and normal. And of course there’s the pending DOMA litigation, which might give a big boost to marriage equality on Equal Protection grounds, if the reasoning of the Massachusetts District Court is upheld on appeal and followed in other pending cases.
So if the decision itself in Perry v. Brown isn’t the small step forward, what is? It’s the language about why “domestic partnership” can never ever substitute for “marriage” as the name for a legally recognized long-term committed relationship. Recall that California, at the time of In re Marriage Cases, 183 P.2d 364 (2008), already had in place a registered domestic partnership that provided substantially all the rights and benefits of marriage. The case turned solely on making the legal name available. It was about status and dignity conferred or withheld by name alone. And boy does Perry v. Brown go to town on the status and dignity of “marriage”. Here are three passages
“[W]e emphasize the extraordinary significance of the official designation of ‘marriage’. That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.”
“As Proponents have admitted, ‘the word “marriage” has a unique meaning’ and ‘there is a significant symbolic disparity between domestic partnership and marriage.’ It is the designation of ‘marriage’ itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important.”
“The incidents of marriage, standing alone, do not . . . convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.”
In my view (and I’ve written about this) Perry v. Brown offers the clearest statement yet in a court opinion on the difference between “marriage” on the one hand and “domestic partnership” (or “civil union”) on the other. It describes persuasively and at length the status and dignity of the name “marriage” and the injury carried out by withholding the designation. The court didn’t have to do this. It could have relied on the prior California Supreme Court’s holding without going on for several pages on its own. So the small step forward, in my view, is not the holding itself in Perry v. Brown, with its deliberately technical and limited scope and structure. It is the opinion’s expansive rhetoric about the stakes. This language will be cited and quoted widely in the next decade, I suspect, in the ongoing culture wars over marriage equality, including right here in the never-never land of New Jersey.