In a 2-1 decision that comes as little surprise, the Ninth Circuit Court of Appeals held that California’s Proposition 8 was unconstitutional. Prop 8 came about after California judges ruled that California’s constitution mandated the recognition of same-sex marriages. A majority of voters in the State of California passed an amendment that gave same-sex couples all of the legal rights of marriages without the use of the title. This lead opponents of gay marriage to sue in federal court to overturn Prop 8. As expected, the district court and the Ninth Circuit went along.
I’m a supporter of gay marriage, although a tepid one. I don’t buy the argument that allowing gay marriage does a damn thing to harm the institution of marriage in this country beyond the massive damage done to it by heterosexual couples over the decades. If we really wanted to restore marriage in this country, we’d make divorces much harder to get. But that has no chance of happening any time soon.
At the same time, the term “marriage” isn’t a term that can be changed on a whim. It has a specific meaning. And the state has an interest in healthy families, which means families where there are two parents who pass along the values necessary for a functioning democracy. If you undermine the family, you undermine society, and you undermine democracy. The decline of the American family is at the foundation of the decline of America, and it’s a serious issue that needs to be fixed.
Even with that as a given, how does denying the right for gay couples to get married fix marriage? If anything, it creates the societal expectation that gay couples should be in stable monogamous relationships and should raise healthy and well-adjusted children. That, in my book, is a good thing for society. Rather than marginalizing homosexuality, we’d be better off mainstreaming it.
Why The Ninth Circuit Was Wrong
That being said, I think the Ninth Circuit was dead wrong in overturning Proposition 8. Two unelected federal judges have absolutely no business writing the social policy of a state against the express will of the voters. The same would be true if California voters had recognized gay marriage and a federal appeals court told them that they could not. The federal government, no less the federal judiciary, has no business deciding what is a matter dedicated to the states.
Proposition 8 could have been undone the same way it was enacted: by the voters. That’s the way it should be overturned. The Ninth Circuit got it wrong in saying that the effect of the law was too rash and not a “cautious” approach. By taking the question away from the legislature and the judiciary, Proposition 8 forced the question to become one of popular will: and there’s no reason to suggest that popular will isn’t already changing. It’s not even a matter of rights: gay couples in California had all of the same legal rights as married one, as the Ninth Circuit opinion took pains to point out. But instead of finding that to be in the favor of Proposition 8, the Ninth Circuit found that to be a mark against it.
That is deeply problematic for acceptance in gay marriage in this country. It basically means that once a state recognizes civil unions, it really is a “slippery slope” towards full-on recognition of same-sex marriage. It makes it a binary proposition for most states—either deny all marriage rights to gay couples or redefine marriage entirely. If the issue is forced like that, many states will just deny all marriage rights.
Moreover, this gives a new push for the Federal Marriage Amendment. If states are going to be forced to accept gay marriage against the will of the voters, it’s possible that the voters will take the matter into their own hands.
Why The Supreme Court Will Affirm Anyway
Obviously, this is a question that the Supreme Court will be taking up in this Term. And Judge Reinhardt, who wrote the opinion, did something very smart for someone in his opinion: he wrote the opinion with one particular Justice in mind: Justice Kennedy.
Ultimately, even though I strongly disagree with the Ninth Circuit’s decision, I would bet that it will be affirmed by the Supreme Court in a 5-4 decision. Justices Kagan, Sotomayor, Breyer, and Ginsberg will vote to affirm. Justices Alito, Roberts, Thomas, and Scalia are sure votes against (although it’s possible that either Alito or Roberts could vote to affirm). Justice Kennedy will write the opinion. Even though a petition for certiorari hasn’t even been filed yet, the writing is already on the wall.
The reason is because Justice Kennedy wrote the majority opinion in Romer v. Evans, the case that overturned an amendment to the Colorado Constitution that was ostensibly written to prevent special rights being granted on the basis of sexual orientation. Justice Kennedy’s opinion struck down the amendment, holding that it violated the Equal Protection Clause of the Fourteenth Amendment. Judge Reinhardt’s decision striking down Prop 8 also was based on the Equal Protection Clause of the Fourteenth Amendment.
It would be difficult for the Supreme Court to overturn the Ninth Circuit without scrapping Romer in the process. I don’t see Justice Kennedy undercutting his own decision any time soon. With the four “liberal” justices and Kennedy, Prop 8 is almost certainly to be DOA when it gets to the Supreme Court.
Getting Civil Rights Wrong
In the end, the problem I have with the Ninth Circuit’s decision isn’t really the outcome: I will shed few tears over Prop 8. The problem is the process. Not every odious law is a violation of the U.S. Constitution. We have a federal government based on limited, enumerated powers. None of those include telling other states how they should or should not define marriage.
The Ninth Circuit has basically said that we no longer have a government “by the People, for the People.” We have a government that’s “by the People unless the judiciary disagrees, in which case the judiciary wins.” That’s a dangerous precedent to set.
This isn’t at all like the civil rights movement of the 1950s and 1960s. The advocates of same-sex marriage have plenty of recourse at the ballot box and in the court of popular opinion. They’ve won plenty of battles there. The fact that they’ve lost some of those battles doesn’t justify saying that the federal government must step in and take away the right of the voters to choose their own paths. Proposition 8 may be an odious and vile law, but there are plenty of laws that I consider odious and vile. The remedy for those laws is to get the people to overturn them, not to make the whole country less democratic. This isn’t a case where same-sex couples are denied public accommodations. Proposition 8 granted same-sex couples every right of marriage but the name—but that wasn’t enough for the Ninth Circuit. Which indicates that this really isn’t about legal rights, but moral ones.
This decision was ostensibly based on the law, but at the end of the day it was one in which two judges decided that they think that the choices made by California voters were morally wrong and they wanted a different choice. Those two judges may be right, maybe it is morally wrong to deny the moniker of “marriage” on committed same-sex marriages. But it’s not their call to make. That’s what being a nation of laws rather than men implies—and if you don’t like it, then work to get the law changed.
The fact is that full legal recognition of same-sex marriage was probably inevitable anyway. But if the Supreme Court does what it is likely to do, the result could well be a Federal Marriage Amendment that puts the question back into the hands of the people. That would be a major setback for the cause of same-sex marriage, but when you take power away from the people and invest it in unelected judges, you will create popular blowback. The real solution would have been to use the power of our democracy, to speak out, and to get the voters of California to overturn Prop 8 on their own accord. In the end, the Ninth Circuit’s decision may have been a victory for same-sex marriage, but it may also turn out to be a Pyrrhic victory in the end.
