One of the most important functions of a dissenting opinion is to throw red meat to op-ed writers. Justice Antonin Scalia is a master of the form. Witness his dissent in Lawrence v. Texas, warning that, if same-sex sodomy laws are voided, government may soon force the unwilling to accept gays and lesbians “as boarders in their home.” Justice John Paul Stevens also perfected the zinger; he capped his dissent in Citizens United by saying, “While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics.”
As a gesture of defiance, then, Judge Diarmuid O’Scannlain’s dissent from denial of rehearing in Perry v. Brown Monday is a bit of a damp squib. The meanest thing O’Scannlain can find to say is that Barack Obama has recently come out in support of gay marriage. That may be the measure of how strongly the tide is running, both in legal circles and in the larger culture, against those who want to conduct a bitter, last-ditch defense of “one man, one woman.”
As you will recall, in February a three-judge panel of the Ninth Circuit affirmed Judge Vaughan Walker’s district court decision that California’s Proposition 8 (“only marriage between a man and a woman is valid or recognized in California”) discriminates against same-sex couples. But the 2-1 panel opinion, written by Judge Stephen Reinhardt, was much narrower than Walker’s District Court opinion. It didn’t say that the right to marry an adult of one’s choosing is a fundamental right. What the panel said was that, having first allowed same-sex couples to marry, the state could not by majority vote take back the right because of disapproval of homosexuality. It’s an opinion carefully tailored to pass muster with the one person whose judgment matters most, Justice Anthony Kennedy.
The case always seemed to be headed for the Supreme Court; but it could have made a long stop in San Francisco had the full Ninth Circuit voted to rehear the case “en banc,” meaning before an 11-judge panel. Tuesday, the full court voted not to rehear the case. The panel’s opinion won’t take effect, though, until the pro-Prop 8 parties have had a chance to petition the Supreme Court to take the case. If that’s granted, gay marriages in California won’t take place until the high court resolves the issue.
The Court of Appeals does not release the en banc vote count. But O’Scannlain’s pro forma dissent is the only one, and it is joined by only two other judges. A reader scanning it could be forgiven for thinking that some of the pages are missing. O’Scannlain, as noted, begins by complaining that even though President Obama now favors same-sex marriage, he also said in his televised statement that “I’d like to see is— . . . conversation continue in a respectful way.”
“Our court has silenced any such respectful conversation,” O’Scannlain claims. That’s a classic dissenter’s overreach—like Scalia’s famous dissent in United States v. Virginia, in which he proclaimed that, by ordering women admitted to Virginia Military Institute, “Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.” (I just this minute called VMI; it’s still open at this hour. Similarly, the debate over same-sex marriage is still permitted by law and will go on.)
A concurrence to the denial, undoubtedly written by Reinhardt, mildly notes that “[w]e are puzzled by our dissenting colleagues’ unusual reliance on the President’s views regarding the Constitution.” I am too, except to conclude that if, in May 2012, the best argument O’Scannlain can think of is “President Obama said we can still argue about this,” he must feel the ground not just moving but liquefying under his feet.
None of that means that the majority of the Supreme Court won’t agree with O’Scannlain. But for the moment, the marriage equality side has so dominated the dialogue that even its enemies are letting it write their lines.