Thoughts on the Ninth Circuit’s Same-Sex Marriage Decision

1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won’t even ask for en banc review by the Ninth Circuit, since they’re unlikely to win there. Depending on how quickly they file their petition for certiorari, the Court will either decide in late September to hear the case, or will decide this late this Spring. Either way, the Court will hear the case next Term, though probably not before the election. Though, for reasons I describe below, the decision only applies to states, like California, that recognized civil unions but not same-sex marriages, it’s still a conclusion of national importance, one on which the Supreme Court is likely want to speak. And even if, as described below, the decision is limited just to California, I think the Court will still think it’s important for it to resolve the question.

2. The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label “marriage” is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires “strict scrutiny” or “intermediate scrutiny” and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis.

Note that, if the decision is upheld, this means that the arguments that civil unions are a “slippery slope” to same-sex marriage were absolutely right: The recognition of civil unions changed the legal landscape in a way that made it more likely for courts to also conclude that same-sex marriage must be recognized, too.

3. The Ninth Circuit’s opinion also stresses that same-sex marriage was once recognized (by court decision) and then derecognized (by the voters). If the opinion is limited to such situations, this would mean that its logic would only be applicable to California, and possibly Hawaii.

But I don’t think that the opinion’s logic can be so limited. The court reasoned that same-sex couples can’t be denied the same right that opposite-sex couples have — the right to have their relations recognized as “marriage,” at least once they have the same tangible rights under state civil union law. But that denial would be present regardless of whether (1) the label “marriage” was once given and then taken away or (2) was never given in the first place. In either case, a benefit (the label “marriage”) is given to some but denied to others. Either way, opposite-sex couples would have a right (to the label “marriage”) that same-sex couples would not. Such a discrimination would have to be rationally related to a legitimate government interest. And under the Ninth Circuit’s reasoning, such a rational relationship is absent here, which would doom all state regimes that recognize civil unions but not same-sex relationships.

Moreover, if California had no obligation to provide equal treatment for same-sex marriages and opposite-sex marriages (at least when civil unions were recognized), then the sovereign rulers of California — the people, acting through the constitutional amendment process — are entitled to correct their employees’ (the California Supreme Court Justices’) conclusion to the contrary. The Ninth Circuit’s holding that the California voters are not entitled to correct their employees this way, because such correction is not “rational,” means that California and other states weren’t entitled to have this particular discrimination in the first place.

4. Now on to the question whether denying the label “marriage” to same-sex unions, once civil unions that provide all the tangible benefits of marriage are recognized, is rationally related to a legitimate government interest. Here, I think the Ninth Circuit majority erred.

a. First, note that this debate is just about the label “marriage,” and thus about the message that the label sends. The court concluded that Prop. 8 was unconstitutional because this symbolism mattered, and mattered a lot — the message is injurious to same-sex couples’ (and individuals’) dignity, and may lead to more societal discrimination against gays and lesbians. But if this symbolism of “disapproval of … [same-sex] relationships” (Op. 77) is so significant, then it may be plausibly believed to subtly push some people away from same-sex relationships to opposite-sex relationships. To so conclude, you don’t need to believe that gays and lesbians, in the sense of people who are solely attracted to people of the same sex, can be “cured” in the sense of being turned straight. You only need to focus on the substantial number of bisexuals, and assume that their behavior can be affected, in some instances and for some people, by the message of “disapproval of …. [same-sex] relationships.”

This is relevant because it bears on how the Ninth Circuit responded to the arguments that the desire to have a greater fraction of children be raised by opposite-sex biological parent couples forms a rational basis for the law:

We need not decide whether there is any merit to the sociological premise of [the Prop. 8 backers’] first argument — that families headed by two biological parents are the best environments in which to raise children — because even if [the backers] are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California” (pp. 56-57) is beside the point, when it comes to the rational basis test.

But family formation is not just driven on who has the legal “ability” to become parents. It is also driven by social attitudes. It is not irrational to conclude that, if the refusal to recognize same-sex marriage has powerful symbolic effect — which is what the Ninth Circuit argued in striking down this refusal — it may likewise have a powerful symbolic effect when it comes to people’s choices about whom to parent with. As it happens, I’m quite skeptical that this effect will be substantial enough to make a difference, and I on balance think that recognizing full same-sex marriage is good policy. But under the rational basis test that the Ninth Circuit is purporting to apply, a court must uphold a law so long as it rests on a plausible view of the facts, regardless of whether the judges agree with the lawmakers on those facts.

5. The court also rejects the argument that Prop. 8 is rationally related to a legitimate government interest in “‘proceed[ing] with caution’ when consider changes to the definition of marriage” (p. 64). The court suggests that some laws might have such a rational basis; and recall that the court is ostensibly applying the test that’s applicable to a vast range of economic regulation, which is often defended on bases no more scientifically provable than that. But the court said that the law isn’t rationally related to this interest:

Had Proposition 8 imposed not a total ban but a time-specific moratorium on same-sex marriage, during which the Legislature would have been authorized to consider the question in detail or at the end of which the People would have had to vote again to renew the ban, the amendment might plausibly have been designed to “proceed with caution.” In that case, we would have had to consider whether the objective of “proceed[ing] with caution” was a legitimate one. But that is not what Proposition 8 did. The amendment superseded the [California Supreme Court cases recognizing a right to same-sex marriage under the state constitution] and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of ‘marriage’ available to same-sex couples in the future. Such a permanent ban cannot be rationally related to an interest in proceeding with caution.

I don’t see how this so. The ban is of course not “permanent” — it can be repealed the same way that it was enacted, by a simple majority of California voters (coupled with either enough voter signatures or enough legislative votes to put it on the ballot). Indeed, changes in attitudes on same-sex marriage, especially among younger voters, suggest that soon, perhaps even in a few years, this amendment would indeed have been overturned. Those who want to “proceed with caution” in this field, especially by making sure that a major change to such an important societal institution is only made with the buy-in of the voting public and not just of judges or legislators, might find it perfectly rational to withdraw from California courts and legislatures (or even from the reach of the statutory ballot measure, as opposed to a constitutional ballot measure) the power to recognize same-sex marriages and to leave it to the California voters in their sovereign power to amend the constitution.

6. Of course, none of this deals with the arguments that same-sex marriage under a more demanding test than the rational basis test — for instance, “strict scrutiny,” which requires that classifications or restrictions be “narrowly tailored to a compelling government interest,” or “intermediate scrutiny,” which requires that they be “substantially related to an important government interest.” Among other things, both of these tests would require courts to look closely at the factual evidence for the claims of narrow tailoring and substantial relationship, rather than to defer to any plausible view of the facts, which is what the “rational basis” test requires. Such tests might be called for if a court concludes that the traditionally recognized constitutional right to marry should be understood as also covering same-sex couples, or that discrimination based on sexual orientation should be treated like sex or race discrimination, or that discrimination based on sexual orientation is a form of sex discrimination. I speak here only of the Ninth Circuit’s conclusion, which is that the California rule of recognizing same-sex civil unions but not same-sex marriages lacks any rational basis.

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