Dalia Lithwick, writing in Slate, thinks Judge Stephen Reinhardt’s Proposition 8 decision doesn’t go far enough. She’s right in that he could have gone further. Judge Reinhardt declined to address the reasons offered by District Court for why Prop. 8 was unconstitutional: (1) that “it deprives same-sex couples of the fundamental right to marry” in violation of the Due Process Clause; and (2) that “it excludes same-sex couples from state-sponsored marriage while allowing opposite-sex couples access to that honored status” in violation of the Equal Protection Clause.
Instead, Judge Reinhardt addressed a third argument, proffered by the plaintiffs in this case: Prop. 8 “singles out same-sex couples for unequal treatment by taking away from them alone the right to marry” in violation of the Equal Protection Clause. It is this reason — the removal of an extant right — that is the easiest way to decide the case, and the most narrow.
Dalia quibbles with this strategy (and it is a strategy, to be sure) because it is designed to ensure the case survives at the Supreme Court. Despite what Judge Reinhardt could have done, the strategy he did take was better in the long run for the gay rights movement than attempting to craft a broader rule.
For one thing, as other articles this week have pointed out, a trip to the U.S. Supreme Court has been the last thing that the gay rights movement wanted. For the past ten years, the movement has attempted a state-by-state strategy, avoiding the Supreme Court at all costs. If they fail in one state, then they fail in one state. But if they fail at the Supreme Court, they fail in every state. They’ve mostly likely been waiting for a change in the Court’s composition, but that won’t happen for a while. Justice Ginsburg, the likeliest member of the Court to either resign or die. If she does so during the Obama administration, will be replaced with another Democrat, albeit one less liberal than she is (although likelier still, her replacement’s confirmation would be delayed until after the 2012 elections). In the former situation, the ideological makeup of the Court remains the same. In the latter, the conservatives have the advantage. The oldest conservative member of the Court, Justice Scalia, is only three years younger than Justice Ginsburg, but he shows no signs of going anywhere any time soon.
So either the case goes to the Supreme Court now, or it goes there in ten years. Prop. 8’s passage — in allegedly the most liberal state in America, no less — accelerated that timetable.
So, whether or not the opponents like it, Prop. 8 is on its way to the Supreme Court. Now what to do? It takes only four Justices to grant certiorari for a case. But one of the doctrines of justiciability is “judicial modesty”; that is, deciding a case on the narrowest grounds possible. Also known as, “What’s the easiest, least-controversial way of getting this case out of here?”
Consider what would have happened had Judge Reinhardt made the broader ruling, the one that declared same-sex marriage a fundamental right to marry just like opposite-sex marriage. The Supreme Court could easily have reversed the decision based on this argument alone, leaving aside the other issues. This would have set the gay rights movement back ten years, to say nothing of the renewed vigor that such an opinion would give organizations like the National Organization for Marriage, perhaps inspiring them to launch more constitutional amendments in more states, confident in their constitutionality.
“The opinion is nothing less than a full-bore attempt to map the constitutional infirmities of Colorado’s Amendment 2 — which stripped gay citizens of certain rights and was deemed unconstitutional — onto Prop 8.” Well, one section is, anyway. In subsequent sections, Judge Reinhard reiterates Judge Walker’s opinion and deals with Prop. 8 on its own terms: namely, that any basis offered by proponents for Prop. 8’s existence does not satisfy even the highly-deferential “rational basis” test. (While Romer v. Evans, which ruled Colorado’s Amendment 2 unconstitutional, used this same test, it’s the test the Supreme Court will use; had Judge Reinhardt used a different test, it would have been easy for the Court to say so and reverse the decision.)
Judge Reinhardt concludes, as did Judge Walker, that Prop. 8’s language had no effect (and would not have had any effect) on the concerns that proponents claimed Prop. 8 was designed to address. Ultimately, Prop. 8 was nothing more than an a veiled attempt to single out a particular class of people due to a morality-based aversion. Both Romer and Lawrence v. Texas foreclosed animosity for a particular class of people as a “rational basis” for passing legislation adverse to that class.
There is one problem with Judge Reinhard’s analysis, however. He emphasizes that California’s law didn’t change the substance of marriage, as both before and after Prop. 8 same-sex couples were afforded all of the same substantive rights that came with marriage. They were denied only the word, which Judge Reinhard calls “the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.” It would be easy for the Supreme Court to parry this one on the ground that a statutory scheme in which two different words are used to describe exactly the same thing does not amount to a denial of Equal Protection. (Brown v. Board of Education would not apply; in Brown, the Court found that segregation by itself led to substantial social and psychological harm to children. In the case of Prop. 8, there’s no evidence that same-sex couples have been similarly psychologically harmed, and the Court could seize on this fact.) If it’s just the word that’s in question, the Supreme Court could very well find no Equal Protection violation because the substantive rights are the same, both in the statute and as applied.
Judge Reinhardt’s opinion covered all the bases. Truthfully, it is a narrow ruling, but necessarily so. Had Judge Reinhardt gone full-throttle into declaring that same-sex marriage was a fundamental right, and any law purporting to eliminate it was subject to strict scrutiny, same-sex marriage may have been prohibitable for the next ten years, if not longer. If the Supreme Court does decide that Prop. 8 is unconstitutional on these narrow grounds, it will pave the way for other appellate courts to strike down other states’ prohibitions on same-sex marriage using similar reasoning. After all, Lawrence‘s question was quite narrow: the statute in question prohibited only homosexual sodomy, but has been applied to other Equal Protection situations since.