The Ninth Circuit Sends Prop 8 to the Ninth Circle

The Ninth Circuit's decision today in Perry v. Brown strikes me as a well-crafted and crafty opinion, one which is designed to box in swing justice Anthony Kennedy by employing his framework in Romer v. Evans to find the California constitutional amendment by referendum to be invalid for the same reason as the constitutional amendment, also adopted by referendum, in Colorado which "prohibit[ed] all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians." In Romer, the Court found that such an enactment, which had the effect of "withdraws[ing] from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies," violated the federal Constitution, by effectively disallowing gays and lesbians the opportunity to effect legislative change by persuasion, and that it

has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests.

In Perry, the panel used this analysis to devastating effect. It did so through several rhetorical steps.

First, the Court establishes that California had by statute defined domestic partnership in such a way as to afford gay and lesbian couples who availed themselves of that status essentially all of the state-provided benefits of civil marriage.

Second, the Court noted that it was bound to accept as the meaning of the California Constitution prior to its amendment by Proposition 8 the meaning authoritatively read from it by the California Supreme Court in In re Marriage Cases (2008), that it contained a fundamental right to marriage which could not be denied to gay and lesbian couples absent a compelling state interest. The Ninth Circuit followed here the doctrine that the state's highest court is the ultimate arbiter of state law, a doctrine so well established that a federal court cannot hear a case in which a federal claim is presented if the decision is supported by independent and adequate state grounds. (Notably, one of the gravest flaws in Bush v. Gore is that it defied this rule, ignoring precedent dating to 1874, arrogating to itself the prerogative of defining state law contrary to the state's highest court, as explained here by Professor Erwin Chemerinsky; a gallant, but to my mind futile, defense of the decision by my old law professor Henry Monaghan is here).

Third, the Ninth Circuit credibly found that it was faced with a change by referendum that had no practical effect on the legally enforceable rights of gay or lesbian couples; rather it changed one thing only:

All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage. . . Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.

As such, the constitutional referendum served no legitimate state purpose; the interests asserted by the proponents such as encouraging procreation (!) were quite literally unaffected. Only the status and human dignity were of gay and lesbian couples were effected--adversely--and the utter failure of any rational legitimate basis to justify the initiative left only one explanation: animus. And, under Romer, such a popular enactment cannot stand. QED.

Assuming, of course, that Justice Kennedy is consistent and stands by his opinion in Romer. Still, Judge Reinhardt has made it extremely difficult for Kennedy. Which, in view of the current composition of the Court, seems to me the one hope for a just outcome here, that Kennedy will not reverse himself.