This column notes a bill in Washington State to allow same sex marriage "validates marriages that are performed by someone without the authority to solemnize weddings, as long at least one of the parties had a good faith belief that the officiant did, in fact, have such authority." The law also replaces religious "denomination" with "organization," and religious organization is defined as "not limited to, churches, mosques, synagogues, temples, nondenominational ministries, interdenominational and ecumenical organizations, mission organizations, faith-based social agencies, and other entities whose principal purpose is the study, practice, or advancement of religion." Religious liberty to the better.
The march to SSM equality slowly advances. Meanwhile, so does the Prop 8 case. Prop 8 was declared unconstitutional via a 2-1 opinion by Judge Reinhardt. Those in the know will provide a knowing nod, so I kind of wish the other judge wrote the opinion. The issue of standing is begun about 1/4 of the way and on that, all three agree, following the lead of the California Supreme Court on the matter. Some hoped they would punt here, but to me, it is something of a sham to have a system as a way to provide the people a means to amend outside the normal process and allow the officials to nullify the result by inaction. The state court determined state law gave third parties, not just the governor here, the power to defend Prop 8, and that's the ideal path.
The opinion took a Romer v. Evans approach, so it argued, avoiding deciding the fundamental right to marry or to marry equally without sex discrimination as well as not dealing with the question of suspect classification. This made it specific to California -- only California gave same sex couples the right to marry and then targeted a minority group by depriving them of an existing right without a legitimate reason. The fact Prop 8 was narrow, more about the (significant) symbolic value of "marriage" and not incidents like tax benefits, only made the indignity more blatant. [Cf. to this law that harmed a lot more than same sex "marriages."] For those who wish to move to another state or might some day want federal "marriage" benefits in a post-DOMA world, it might not even be purely symbolic. Other examples can be imagined.
The debate was whether Prop 8 "rationally" or "reasonably" advanced some legitimate state interest. Heightened scrutiny would have made the other case easier, but also would require a more "activist" opinion. The limited nature of Prop 8 underlines the little value (unlike more restrictive states) to advance parentage by traditional couples. Same sex couples have the same right to foster, adopt and raise children. Relatedly, removing same sex marriage rights does nothing to really promote -- again taken it as a given as credible -- "responsible procreation." Next, if the state wanted to "precede with caution," a permanent ban was not the way to do it.* Anyway, the evidence suggests this isn't a credible explanation of its purpose here. There also is no religious liberty or protect children from being taught about SSM interest promoted here either. Bare tradition isn't enough, it being good and bad. Mere disapproval of gays and lesbians is not enough, said disapproval evidenced by the details particular to the Prop 8 experience. Again, this is not a universal decision.
The dissent agrees with the issue of standing and Judge Walker's ability, even as a gay man in a relationship, to decide the case. It agrees it is not about the constitutional right to same sex marriage as such, so Baker v. Nelson doesn't control. It makes a specific decision on scrutiny: rational basis applies. Why? The Supreme Court never held; yes, it is an open question. Also, why isn't this a matter of sex discrimination as well as Judge Walker argued? Yes, Romer v. Evans involved a broader denial of rights, but the stigma as the majority notes is in a way worse given it is the very point to treat same sex couples as less valuable. Animus is animus, even if the degree is lesser. Finally, it says the responsible parenthood rationale is reasonably furthered. It spends much time defending the interest though; it remains rather unclear how -- in the California context -- how removing "marriage" from same sex couples advances it.
SSM should be treated using heightened scrutiny, but regardless, using Romer v. Evans analysis, the majority opinion works. My opinion is that the specific problem is that Prop 8 seems so gratuitous, a fact suggested by an "issue brief" cited here. A pre-existing same sex marriage ban, especially in many states that at best provides some rights to same sex couples, is not the same thing. If this be "rational basis with teeth," particularly given the clear animus present here, so be it. Justice O'Connor in fact suggested as much in her Lawrence concurrence:
Judicial restraint without judicial blindness. To be continued, for sure.
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* Compare this to Hawaii in the 1990s where the legislature was given the flexibility to allow same sex marriages. As I note here, this is but one possible difference, underlining each state must be treated on its own.
** I find the analysis by the first three conspirators on this subject rather questionable, especially Prof. Kerr's "gist" that the majority opinion said that Prop 8 didn't actually do anything. Various law professor types (see the previous link in that paragraph, including a follow-up post) are simply confused on basic details. Another "seems" to think that the opinion thinks a state cannot change its constitution to clarify what its supreme court ruled. No, the issue is that it cannot do this in a way that wrongly burdens a particular group of people. Why is this so hard?
Update: Thank you Marty Lederman, but again, why no comments?
The march to SSM equality slowly advances. Meanwhile, so does the Prop 8 case. Prop 8 was declared unconstitutional via a 2-1 opinion by Judge Reinhardt. Those in the know will provide a knowing nod, so I kind of wish the other judge wrote the opinion. The issue of standing is begun about 1/4 of the way and on that, all three agree, following the lead of the California Supreme Court on the matter. Some hoped they would punt here, but to me, it is something of a sham to have a system as a way to provide the people a means to amend outside the normal process and allow the officials to nullify the result by inaction. The state court determined state law gave third parties, not just the governor here, the power to defend Prop 8, and that's the ideal path.
The opinion took a Romer v. Evans approach, so it argued, avoiding deciding the fundamental right to marry or to marry equally without sex discrimination as well as not dealing with the question of suspect classification. This made it specific to California -- only California gave same sex couples the right to marry and then targeted a minority group by depriving them of an existing right without a legitimate reason. The fact Prop 8 was narrow, more about the (significant) symbolic value of "marriage" and not incidents like tax benefits, only made the indignity more blatant. [Cf. to this law that harmed a lot more than same sex "marriages."] For those who wish to move to another state or might some day want federal "marriage" benefits in a post-DOMA world, it might not even be purely symbolic. Other examples can be imagined.
The debate was whether Prop 8 "rationally" or "reasonably" advanced some legitimate state interest. Heightened scrutiny would have made the other case easier, but also would require a more "activist" opinion. The limited nature of Prop 8 underlines the little value (unlike more restrictive states) to advance parentage by traditional couples. Same sex couples have the same right to foster, adopt and raise children. Relatedly, removing same sex marriage rights does nothing to really promote -- again taken it as a given as credible -- "responsible procreation." Next, if the state wanted to "precede with caution," a permanent ban was not the way to do it.* Anyway, the evidence suggests this isn't a credible explanation of its purpose here. There also is no religious liberty or protect children from being taught about SSM interest promoted here either. Bare tradition isn't enough, it being good and bad. Mere disapproval of gays and lesbians is not enough, said disapproval evidenced by the details particular to the Prop 8 experience. Again, this is not a universal decision.
The dissent agrees with the issue of standing and Judge Walker's ability, even as a gay man in a relationship, to decide the case. It agrees it is not about the constitutional right to same sex marriage as such, so Baker v. Nelson doesn't control. It makes a specific decision on scrutiny: rational basis applies. Why? The Supreme Court never held; yes, it is an open question. Also, why isn't this a matter of sex discrimination as well as Judge Walker argued? Yes, Romer v. Evans involved a broader denial of rights, but the stigma as the majority notes is in a way worse given it is the very point to treat same sex couples as less valuable. Animus is animus, even if the degree is lesser. Finally, it says the responsible parenthood rationale is reasonably furthered. It spends much time defending the interest though; it remains rather unclear how -- in the California context -- how removing "marriage" from same sex couples advances it.
SSM should be treated using heightened scrutiny, but regardless, using Romer v. Evans analysis, the majority opinion works. My opinion is that the specific problem is that Prop 8 seems so gratuitous, a fact suggested by an "issue brief" cited here. A pre-existing same sex marriage ban, especially in many states that at best provides some rights to same sex couples, is not the same thing. If this be "rational basis with teeth," particularly given the clear animus present here, so be it. Justice O'Connor in fact suggested as much in her Lawrence concurrence:
When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.CLS v. Martinez cited her to show that status/conduct is connected and a majority probably would follow this principle too. Thus, I think this analysis sort of misses the point, taking an artificial "law professor" stance on what state and federal courts up to the USSC has done in practice. To blame lower courts when the USSC hasn't been totally aboveboard is bad pool too, especially (by someone who I usually find reasonable, even with his conservative policy views on certain subjects) if you do so sloppily. The court's logic might if taken to its logical conclusion be taken much further, but it is narrowly applied here. This is how the law develops, including in the courts. As with the GPS ruling and Orin Kerr's criticism over at Volokh Conspiracy, it might be a bit messy, but life is messy.** And, if Kennedy is coy (or is "lying" as suggested by a comment in the last link), some lower court ruling, surely not Reinhardt from the Ninth freaking Circuit doesn't have the clout call him out.
Judicial restraint without judicial blindness. To be continued, for sure.
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* Compare this to Hawaii in the 1990s where the legislature was given the flexibility to allow same sex marriages. As I note here, this is but one possible difference, underlining each state must be treated on its own.
** I find the analysis by the first three conspirators on this subject rather questionable, especially Prof. Kerr's "gist" that the majority opinion said that Prop 8 didn't actually do anything. Various law professor types (see the previous link in that paragraph, including a follow-up post) are simply confused on basic details. Another "seems" to think that the opinion thinks a state cannot change its constitution to clarify what its supreme court ruled. No, the issue is that it cannot do this in a way that wrongly burdens a particular group of people. Why is this so hard?
Update: Thank you Marty Lederman, but again, why no comments?