Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps, have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous. At Balkinization, Jason Mazzone is harshly critical of Reinhardt’s opinion, arguing that “it is dishonest and foolish” and that the Ninth Circuit should “have written a powerful opinion setting out why a ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment” rather than resting on narrow grounds.
In an ideal world, it would be better if the Supreme Court were to declare a right to same-sex marriage that applied immediately to all 50 states. However, I largely disagree with Mazzone’s critique. Most important, it misstates Reinhardt’s analysis and is far too optimistic about the odds that five Supreme Court justices would be willing to strike down bans on same-sex marriage in more than 40 states.
Mazzone’s chief disagreement with Reinhardt is in his interpretation of the 1996 landmark Romer v. Evans. The opinion, written by Justice Anthony Kennedy, struck down Colorado’s Amendment 2, which prevented any state institution or agency from providing legal protections on the basis of sexual orientation. Reinhardt argues that Proposition 8 is analogous to Amendment 2, and hence Romer requires that it be held unconstitutional.
According to Mazzone, Reinhardt’s analogy is null. “Romer doesn't stand,” he argues, “for the freewheeling proposition that if the state gives you something it can't later take it away.” This would indeed be a silly argument—but I don’t believe that this is what Reinhardt is arguing. As I explain in my own take on the ruling, Reinhardt sees Proposition 8 as being analogous to Amendment 2 in two crucial ways. The amendments not only took away a pre-existing legal right, but “singl[ed] out a certain class of citizens for disfavored legal status.” Nothing in Reinhardt’s opinion suggests that the first condition would immediately trigger an equal-protection violation without the presence of the second, and there can be little dispute that Proposition 8 singled out a class of individuals for disfavored status. No analogy is perfect, but the analogy drawn by Reinhardt between the two initiatives is plausible, and the conclusion that Romer makes Proposition 8 unconstitutional is strong.
Romer is important for another reason: It would not be easy for the Ninth Circuit to write an opinion granting a national right to same-sex marriage given that it is bound by its holding. Romer went out of its way to argue that sexual orientation, unlike racial and gender classifications, did not trigger heightened constitutional scrutiny. According to Kennedy, Amendment 2 failed to even meet the “rational basis” test that any statue must pass. The Supreme Court can decide to apply heightened scrutiny to sexual orientation, but the Ninth Circuit cannot. And while it’s not impossible to argue that bans on same-sex marriage fail even a rational basis test, it’s a stretch. For a progressive judge who has clashed frequently with the conservatives on the Supreme Court to stretch existing precedent to the outer limits of plausibility is not a good strategy for getting an opinion affirmed.
Of course, if the median vote on the Supreme Court were strongly committed to finding a broad right to same-sex marriage, playing fast and loose with precedents wouldn’t necessarily be a major issue. But how confident should proponents of same-sex marriage rights be in Anthony Kennedy? Mazzone blithely assumes that it is “unlikely that Justice Kennedy—author of Romer and Lawrence and deeply concerned about his place in history—would join a decision holding a ban on same-sex marriage constitutional.” I think the inference Mazzone draws here understates the gap between Kennedy’s earlier gay- and lesbian-rights decisions and a ruling creating a national right to same-sex marriage.
Romer and Lawrence were classic examples of the Supreme Court bringing outliers into line, striking down an unusual amendment in a single state and sporadically enforced laws in a handful of states, respectively. Striking down bans on same-sex marriage in more than 40 states is an entirely different proposition—he may be ready to make that leap, but I sure wouldn’t bet on it. It’s also worth noting that his most famous act of apostasy, Planned Parenthood v. Casey, essentially preserved the status quo rather than remaking it.
Reinhardt seems to believe that Kennedy would be much more willing to join a narrow ruling striking down Proposition 8 than a broad one—and I think there is very good reason for that. Moreover, the stakes of losing at the Supreme Court if the question is broadly presented are also higher; a Bowers-like precedent flatly denying a right to same-sex marriage would be a disaster. Reinhardt’s opinion was very shrewd and represents the best chance for a victory at the Supreme Court while minimizing the chances of a crushing defeat.