Also in Slate, Walter Dellinger looks at whether the Prop. 8 case should even be in the appeals court in the first place.
Is there any reason to wall marriage off from gay couples? Any reason at all?
That is what the whole debate over the constitutionality of California's Proposition 8, the voter referendum that banned same-sex marriage, came down to Monday in a long argument before the U.S. Court of Appeals for the 9th Circuit. It was amazing to see lawyers and even one judge scrape around to find any sort of justification—and how thin what they finally dredged up was. Ten or even five years ago, opposition to gay marriage looked like a thick blanket you could wrap yourself in. Now it's threadbare, with more holes than stitching.
The three judges hearing the appeal of Judge Vaughn Walker's ruling knocking down Proposition 8 may never actually get to this question, since it wasn't clear two of them, at least, thought anyone speaking today on the side of the voter referendum had standing to be there. I'll let Walter Dellinger tackle that part of the argument for us. But on the merits—does Proposition 8 have a constitutional leg to stand on?—it wasn't much of a contest. The judges seemed likely to divide, 2 to 1. Proposition 8 will get that one vote because Judge N. Randy Smith, the George W. Bush appointee on the panel, was ready to step in to save the initiative's lawyers from themselves.
Asked to stand up for marriage in its man-and-woman-only form, Charles Cooper, the lawyer for the Proposition 8 backers, initially said the court could "distinguish between same-sex couples who cannot, ah, ah, procreate without the intervention of a third party. Compared to opposite-sex couples who can procreate, who can have unwanted pregnancies." The idea, spelled out elsewhere, is essentially that heterosexual couples need marriage for self-protection. Since most of them can make babies all too easily, they need the state's carrot and stick to make sure they raise them together and are legally bound. Gay couples have to put more effort into having children, goes the rest of the argument, so they don't need the bond of marriage to whip them into shape.
This is a strange and backward argument. It's also entirely unclear why it means we have to reserve marriage for straight people as opposed to letting them marry at all. Asked at trial how permitting gay marriage would harm straight couples, Cooper famously said, "I don't know." (Yes, his opponents made sure to quote him on that today.) If no one can say how striking down Proposition 8 will do harm, then what's the rational basis for upholding it?
Rational basis is the legal standard the court will probably use to evaluate the California ban. It's not a high bar. It means the state just needs some reasonable rationale for excluding gay couples from the benefits of marriage. But even Judge Smith expressed some concern about meeting it. He pointed out to Cooper that California has now granted gay couples all the legal rights and responsibilities of marriage, through civil unions, while withholding from them just the title. "You're left with a word, marriage," the judge said. "What's the rational basis for that?"
"You're left with a word, but a word that is really the institution," Cooper answered. "If you change the word, you change the institution. The name of marriage is effectively the institution."
This fell flat. So the other judges on the panel, Clinton appointee Michael Daly Hawkins and Carter appointee Stephen Reinhardt, stepped in with questions about Romer v. Evans, the 1996 Supreme Court case in which gay residents challenged an amendment to the Colorado constitution that ordered cities to exclude them from anti-discrimination legislation. Colorado's amendment failed the rational-basis test, the court held in an opinion by Justice Anthony Kennedy, because it subjected gays to "disfavored legal status" out of mere animus—prejudice.
Romer could offer a way to strike Proposition 8 down while standing in Kennedy's relatively safe shoes. Hawkins and Reinhardt repeatedly came back to the fact that Kennedy's opinion stands for the dangers of taking away rights from a particular group once they've enjoyed those rights for a time. In California, gay couples got the right to marry from the state Supreme Court in May 2008. Then, in the November election, that year, the voters passed Proposition 8 and snatched marriage back. Isn't Proposition 8 just like the Colorado amendment the Supreme Court eliminated in Romer, Hawkins and Reinhardt asked?
Cooper said no. He tried to bat Romer away. Colorado's amendment "rendered homosexuals strangers to the law," he argued. It was "sweeping." It bears no resemblance to modest little Proposition 8. Does that mean "it's bad if you take away a bunch of rights but OK if it's just one?" Hawkins asked.