Government Has to Give Reasons

The Ninth Circuit's opinion in Perry v. Brown drew a letter to the Court suggesting the decision stemmed from "mold infestation" in court buildings. The correspondent is not the only person who hates the decision but has trouble explaining, in legal terms, why.

The case illustrates the concept of "governmental interest" in constitutional law. My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: "When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason." Judges weigh "stuff government wants to do to you" against government's reasons, or "interests."

Government wants to do a lot of things-keep order in the streets, prevent outbreaks of the Black Death, make the downtown mall nice, etc. In constitutional law, most of those interests are "legitimate"; there's no reason government can't pursue them. Only a few are "compelling," which means things would descend into howling chaos-foreign invasion, plague, Mad Max-if government doesn't pursue them.

Balanced against these interests are the specific things government wants to do. Most are pretty ordinary: government can put up a stoplight on your street without having to give much of a reason. But some are serious-for example, telling a competent adult he or she can't get married. The plaintiffs in Perry argued that Proposition 8 denied same-sex couples the ability to get a marriage license. But Judge Stephen Reinhardt's opinion sharpened that claim: He said the case is about taking away the right to a marriage license from people who once had it. During a few months in 2008, same-sex couples had the right to a marriage license; Proposition 8 revoked it.

What's the difference? Claims of "new rights" are easier to defeat; it takes a better reason to justify taking away established right. Proposition 8 took the right away only from same-sex couples. Reinhardt concluded-and he had caselaw to support him-that the logical reason was that the voters didn't approve of same-sex couples. Under a long line of Supreme Court cases, "we don't like your kind around here" is the one "interest" we know is illegitimate. The right in Perry, Reinhardt's opinion argues, is not the right to marry the consenting adult of one's choice; it is the right not to be singled out and stripped of rights out of sheer "animus."

I rejoice at the result in Perry. But we needn't mock the pain of some gay-marriage opponents who feel unheard. Their most heartfelt argument is this: "Marriage" has always meant a man-woman bond; to change that is to take away a certainty we rely on.

"It's always been this way" is the essence of Edmund Burke-style conservatism. Reason, Burke argued, is fallible; we shouldn't change traditional ways on such an uncertain basis. A wise society restricts even our best impulses: "the restraints on men, as well as their liberties, are to be reckoned among their rights," Burke wrote in Reflections on the Revolution in France.

American law doesn't recognize "better to let everything alone" as "legitimate," much less "compelling." The right to marry is a constitutional right, long recognized in history and caselaw. The government can't deny constitutional rights on the grounds that "we just always did it that way." Government has to give a reason. In historical terms, that's a remarkable thing. It reminds us that, underneath its social inertia and conservative exterior, America and its Constitution are the products of a revolution.