Eugene Volokh's Blog, page 2619
February 8, 2012
Thoughts on the Road From Walker to Reinhardt to Kennedy
Reading the blog and media reaction to Judge Reinhardt's opinion for the Ninth Circuit in Perry v. Brown, it's interesting how much it resembles the reaction to Judge Walker's opinion at the District Court level. Most agree that both opinions were written solely for an audience of one, Justice Kennedy. In both cases, a lot of the reactions focus on whether the opinions successfully figured out a clever way to get Kennedy's vote.
After Judge Walker's opinion, for example, a lot of commenters thought Walker was particularly clever for announcing rather aggressive findings of fact that seemed to bleed over into the legal issues; the thought was that Walker could force the higher courts to see things his way because facts ordinarily are reviewed under the "clearly erroneous" standard instead of a de novo standard. After Reinhardt's opinion, a lot of commenters have suggested that Reinhardt was particularly clever because he framed the issue narrowly under Romer, avoiding the broader questions of gay marriage.
I have no idea what the Supreme Court might do in the Perry case. But my own sense is that Judges Walker and Reinhardt are not quite as clever as some people seem to think. Or, at the very least, the reasoning of their opinions don't really matter very much. First, I think it's unlikely that the particular reasoning of either opinion will have a substantial influence on the Justices. The issues in Perry are extremely important, and they're the kind of issues that force the Justices to fall back on first principles. The details of how the lower courts reached the results they reached matter a lot less in that kind of case than in an ordinary case. Consider how Judge Reinhardt dealt with Judge Walker's extensive factual findings: He basically ignored them.
Second, to the extent the reasoning of the lower court decisions matter — which, as I said, I tend to doubt — the fact that both opinions are widely understood as advocacy briefs to Justice Kennedy from judges who are same-sex marriage supporters probably hurts the same-sex marriage cause more than helps it. The Justices aren't dumb: They get it. And when they get the sense that the lower courts were crafting their opinions to try to maneuver a single Justice into a desired result in such a high profile case, that kind of heavy handedness runs a risk of backfiring. It creates a sort of patina of unreliability. I think a more clever strategy would have been to be more subtle: Create more of a sense of the opinions as routine legal opinions and less as advocacy briefs. And if you're Reinhardt, make the opinion "per curiam" so it doesn't come to the Court with your name on it.
Two New Reviews
Daniel Holt of the Federal Judicial Center reviews Rehabilitating Lochner for the H-South discussion list. ("An important contribution to the history of constitutional law and the Progressive era. The book is a valuable corrective to the work of historians who might reflexively sympathize with the Progressives and the criticisms of the Lochner decision.") At H-South's request, I wrote a short response, and Holt responds to my response here.
The book is also the subject of a more critical book review in Texas Law Review's "Dicta" on-line journal. Author Jamie Fletcher concedes that the book is "beautifully written," but concludes that I ultimately failed in what he asserts are my normative goals. Given that I actually disagree with many of the positions that Fletcher attributes to me (such as believing that "libertarianism is the only legitimate theory of constitutionalism"–I doubt it's even a legitimate interpretive theory for the American Constitution) and certainly didn't advocate these positions in the book, I happily plead guilty to failing to persuade readers on those points.
Students Who Failed Out of Law School Sue School for Arbitrary Grading Practices
The Houston Chronicle reports, via ATL:
Karla Ford and Jonathan Chan expected to be spending this year studying legal briefs and litigation as second-year law students at Texas Southern University's Thurgood Marshall School of Law. Instead, last spring, both students were dismissed after getting a D grade in their Contracts II course.
Now, the two are suing the school and their former professor, saying their final grade was "arbitrary and capricious."
Widener Law Case Settles, Although Terms of Settlement Remain Unknown
It's been a while since I blogged about the case of Professor Lawrence Connell, the Widener Law Professor who was brought up on disciplinary charges for the way he taught his criminal law class. Connell then filed suit in state court against Dean Linda Ammons, the law school, and the two students whose complaints formed the basis of the disciplinary charges.
Today I received the following e-mail from Connell's lawyer, Thomas Neuberger:
"All claims amongst all parties have been resolved amicably and Professor Connell's employment with the University and Law School has been concluded. Specific terms of the resolution are confidential. So, we have no further comment."
So the civil case is over, and Connell has left Widener. I sure would like to hear more as to what actually happened at Widener that led to the charges in the first place.
Sesame Street Justice
News that a Supreme Court justice appeared on a TV show would normally make me cringe. But I think this appearance by Justice Sotomayor on Sesame Street is really terrific. Kudos to Justice Sotomayor for being a good sport about it.
Putting aside the lack of a federal question, it seems a tad unfair to ignore the trespass before pressuring the parties to settle in way so favorable to the trespasser. But I suppose it's nicer to hear the case than just deny cert as factbound and splitless. Hat tip: How Appealing.
Does the Right to Choose a Roommate Include a Right to Advertise Discriminatory Preferences?
Last week, Eugene blogged about the Ninth Circuit's opinion in Fair Housing Council v. Roommate.com. As Eugene noted, the court, in an opinion by Judge Alex Kozinski,
holds that federal and state housing discrimination law do not extend to discrimination in choice of roommates (or in advertising for roommates). Part of the court's rationale is its judgment that reading the law as applying to roommate selection would raise serious constitutional concerns, given the right to "intimate association" that the Supreme Court has recognized in cases such as Bd. of Dirs. of Rotary Int'l v. Rotary Club of Duarte (1987); the Ninth Circuit therefore interprets the federal and state laws, which it sees as not definitive on the subject, to avoid the constitutional problem.
I agree that (a) the Fair Housing Act was not meant to impinge on roommate decisions and (b) if a is wrong, the right to intimate association nevertheless prohibits the government from interfering with one's choice of roommate.
However, I was surprised that the opinion didn't address a more subtle argument, to wit: if the Fair Housing Act does apply to roommate situations, even if it would be unconstitutional for the government to punish someone for his choice of roommate it is not unconstitutional for the government to prohibit someone from advertising discriminatory preferences.
The reasoning would be that while who one chooses to live with involves intimate association rights, publicly advertising one's discriminatory preferences in an advertisement for a roommate is not only not an "intimate" activity, it's a very public one.
Indeed, it's my understanding that during the Clinton Administration, HUD's position was that it could (and would) prohibit advertising that expressed discriminatory preferences even when acting on those preferences would be constitutionally protected. (The relevant regulations allowing punishment for such behavior were eventually withdrawn because of a related controversy over what was seen as HUD's overly vigorous interpretation of what constituted discriminatory advertising.)
It's not clear that HUD's position has changed. Judge Kozinski points out that HUD recently dismissed a claim against a woman who advertised for a Christian roommate on a church bulletin board based in part on the unique context of the ad, but it's not clear that HUD would take the same position about an ad seeking a white roommate published in the Washington Post classifieds.
As I discuss in You Can't Say That!, I think that as a policy matter people should be able to advertise discriminatory roommate preferences. Beyond standard libertarian concerns, banning such advertisements doesn't actually decrease discrimination, it just imposes costs all around, not least on, e.g., a black individual seeking housing who winds up traveling to meet various potential roommates who will inevitably turn him down. Meanwhile, the people who will be most affected by an advertising ban will be members of small minority groups who will have difficulty satisfying their roommate preferences if they can't advertise them. It's easy enough to find a white or black roommate in Washington, DC, but what if you are a Gay Hispanic Republican, seeking the same (discrimination based on political affiliation is banned in DC)? The counter-argument, of course, is that allowing discriminatory advertising creates dignitary harms to members of disfavored groups and "normalizes" the public expression of discriminatory housing preferences.
Given my Gay Hispanic Republican example, if I were a judge I'd likely be sympathetic to the argument that bans on advertising discriminatory preferences puts too great a burden on the exercise of intimate association rights to be constitutionally permitted. Whether precedent supports such an argument, however, is not clear. I expect that the next major case against an entity like Roommate.com will need to take up this issue.
February 7, 2012
Why Same-Sex Marriage Bans Qualify as Sex Discrimination
Today's Ninth Circuit decision striking down California's Proposition 8 banning same-sex marriage is unpersuasive because it claims that the law fails to meet even minimal "rational basis" scrutiny. Eugene Volokh does a good job of explaining why. But there is an alternative constitutional rationale for striking down same-sex marriage bans that avoids this problem. Proposition 8 is an example of sex discrimination, and must be evaluated under the higher standards of scrutiny applied to gender discrimination by the Supreme Court.
Although the sex discrimination argument has been advanced by several academic advocates of gay marriage, nonacademics tend to be skeptical because the same-sex marriage bans seem to be targeted against gays, not men or women. Hostility towards gays is certainly part of the motivation for bans on same-sex marriage. But that does not prevent these laws from qualifying as sex discrimination. In terms of the way the law is actually structured, a same-sex marriage ban in fact discriminates on the basis of gender rather than orientation. And one can discriminate on the basis of sex even if the motivation for doing so is something other than sexism.
Consider the hypothetical case of Anne, Bob, and Colin. If same-sex marriage is forbidden, Anne is allowed to marry Colin, but Bob cannot do so. This is so even if Anne and Bob are identical in every respect other than gender. Bob is denied the legal right to marry Colin (and all other men) solely because of his gender. Denial of a legal right solely on the basis of gender is the very essence of sex discrimination.
By contrast, sexual orientation actually has no effect on the way the law operates. Anne is still allowed to marry Colin, even if one of them happens to be gay or lesbian. Bob is denied that right regardless of his sexual orientation. There are actually lots of real world cases where gays or lesbians have entered into opposite-sex marriages, such as the famous example of former New Jersey Governor James McGreevey, a closeted gay man who was married to a woman for many years. McGreevey's marriage was not illegal, even if his actions were morally dubious.
All of this simply underscores the reality that a ban on same-sex marriage discriminates on the basis of gender rather than orientation – even if the motivation for the discrimination is hostility towards gays and lesbians. Under the Supreme Court's approach to sex discrimination, any "statutory classifications that distinguish between males and females" are subject to heightened judicial scrutiny. A ban on same-sex marriage pretty obviously "distinguish[es] between males and females."
Although a ban on same-sex marriage qualifies as sex discrimination, it is not automatically unconstitutional. Since the 1970s, the Supreme Court has taken the view that laws that discriminate on the basis of sex do not violate the Constitution if they can pass "intermediate scrutiny," which requires them to be "substantially related" to an "important state interest." If opponents of same-sex marriage are right to claim that Western civilization will fall into deep decline if the practice is allowed, that would be enough to pass the test. Ditto if they can show that same-sex marriage somehow inflicts severe harm on children. But any such arguments would be subject to detailed judicial scrutiny. They would have to be backed by real evidence, and could not pass muster just by being minimally plausible, as under the "rational basis" test.
Some originalists might reject my argument on the grounds that sex discrimination itself is not really banned by the original meaning of the Fourteenth Amendment. I criticized such arguments in this post. For a much more comprehensive rebuttal, see this important recent article by Steven Calabresi and Julia Rickert.
A more moderate originalist critique of my position might hinge on the idea that the framers of the Amendment would not have thought of a same-sex marriage ban as sex discrimination. But it is not hard to figure out that a law under which a legal right is dependent on gender discriminates on the basis of sex. The Framers surely thought that this was justifiable sex discrimination. But that does not mean that it isn't sex discrimination at all. If asked whether marriage laws circa 1868 limited the right to marry on the basis of gender, most people at the time would surely have said yes. And, as in the case of occupational discrimination against women, the Framers' view that this form of sex discrimination is constitutionally permissible hinged on dubious factual assumptions that we are not bound by today.
In sum, a ban on same-sex marriage easily qualifies as sex discrimination and is therefore subject to heightened judicial scrutiny. Whether it could withstand such scrutiny is a question I leave to others, though I am skeptical about its chances.
UPDATE: Many commenters seem to be assuming that, in order for a law to qualify as sex discrimination, it has to be motivated by hostility to men or women. Not so. As the Supreme Court puts it, a law can qualify as unconstitutional sex discrimination so long as it is a"statutory classification… that distinguish between males and females." Similarly, a racial classification counts as racial discrimination for constitutional purposes even if the motives behind it are benign.
It is also not true that a ban on same-sex marriage avoids qualifying as sex discrimination because it affects members of both genders. It still denies rights to both men and women solely on account of their sex. The fact that Bob cannot marry Colin solely on account of gender is not somehow "balanced" by the fact that Anne is similarly forbidden to marry Carol. Similarly, a law banning interracial marriage still qualifies as race discrimination even though both blacks and whites are barred from marrying members of the other racial group.
What Counts as a Rational Basis To Pass a Symbolic Law?
Having read Judge Reinhardt's opinion in Perry v. Brown, it seems to me that the weight of the analysis hinges on an interesting question: What counts as a rational basis to enact a symbolic law? Reinhardt's basic reasoning is that Prop 8 is unconstitutional because it was merely symbolic. The ballot initiative didn't do anything substantive: It amended the California Constitution to say that "Only marriage between a man and a woman is valid or recognized in California," but it left in place domestic partnerships with most or all the rights of marriage.
According to Reinhardt's opinion, this dooms Prop 8. The rational basis test requires some theoretical reason to think that the Amendment might improve society in some way. The gist of Reinhardt's opinion is that a symbolic law like Prop 8 can't improve society because it doesn't make any actual difference. As a result, even if there are lots of rational reasons to ban same-sex marriage generally, it is irrational to forbid only the symbolism of the word "marriage." Finding no rational utilitarian reason to forbid the word "marriage," Reinhardt concludes that the law fails the rational basis test and must have been passed to express animus towards or disapproval of homosexuality.
I don't find this argument persuasive. Prop 8 was a direct response to a judicial decision by the California Supreme Court. One rational reason to support a symbolic law like Prop 8 would be to issue a rebuke to the California Supreme Court that issued that decision, with the hope that such a public rebuke might influence the Court's decisions in the future. Different people will disagree on whether this argument is persuasive, but I think it satisfies the rational basis test.
To see this, imagine you're a California voter and you're not sure if you think the state should recognize same-sex marriage. Then the California Supreme Court hands down the Marriage Cases, announcing by judicial fiat that the state constitution protects same-sex marriage. "There goes that activist California Supreme Court again," you think to yourself, "interfering with the rights of the people to pass laws the democratic way." You decide you want to teach the Justices a lesson. How can you do it? One way is the Rose Bird strategy: You can wait until a future retention election and vote the Justices out of office. But a second way is to support a voter initiative overturning the decision, even if only as a symbol that the California Supreme Court overstepped its bounds.
This is not only a hypothetical. Although I'm no expert on Prop 8, a quick google search confirms that this argument was made by at least some influential supporters of Prop 8. Here's Newt Gingrich making the case that Californians should support Prop 8 to stop the imperial tyranny of activist judges and to restore democracy in California:
Different people will disagree on whether Gingrich's argument is persuasive. But I would think the argument is at least rational under the standards of the rational basis test. And it doesn't seem to have anything to do with animus towards or disapproval of homosexuality.
Government Employer Free to Fire Human Resources Officials Who Publicly Criticize the Propriety of Gay Rights Laws
So holds Dixon v. University of Toledo (N.D. Ohio Feb, 6, 2012). (I blogged about this case when it was filed.) A few thoughts:
(1) Some of the analysis seems limited to high-level "policymaking" employees, such as a university Associate Vice President.
(2) But some of the argument suggests that any time any government manager with hiring and firing authority — or even with substantial input into hiring and firing decisions — speaks out in opposition to civil rights laws protecting gays, the government may fire the manager on the grounds that the speech (a) "could disrupt the … [d]epartment by making homosexual employees uncomfortable or disgruntled," (b) might lead "homosexual prospective employees [to] reconsider applications," and (c) might "lead to challenges to her personnel decisions."
(3) This in turn highlights the danger to government managerial employees who want to participate in, for instance, campaigns opposing same-sex marriage or proposed laws banning sexual orientation discrimination. If you're such an employee, you'd be wise to keep your mouth shut on such matters, whether it comes to letters to the editor, to blog posts, to yard signs, to campaign donations, or to signatures on initiative or referendum petitions (in states that disclose such signatures). After all, any of these might be noticed by people who will publicize what you said or did, and who will directly or indirectly inform your supervisors about it.
Maybe that's an acceptable price to pay for effective functioning of government workplaces — the Pickering test is generally not very speech-protective, on this subject or others — and maybe it's not. But in any case that seems to be where things are headed, at least in many such workplaces.
As Associate Vice President for Human Resources, Plaintiff was an "appointing authority" at the University, which means she had the power to hire and fire employees…. The University had an Equal Opportunity Policy which prohibited discrimination based on sexual orientation. Further, the University has taken explicit steps to reach out to homosexuals and make them feel welcome.
On April 4, 2008, the Toledo Free Press ran an opinion by Michael Miller which Plaintiff felt compared the modern movement toward increased tolerance and rights for homosexuals to the historical struggles of the African–American civil rights movement and which noted that one University of Toledo campus offered domestic partner benefits and the other did not. Due to her religious conviction, Plaintiff, an African–American woman, felt the need to respond. The Toledo Free Press ran her response on April 18, 2008. In it she objected to the idea that homosexuals are "civil rights victims," asserted that homosexuality is purely a choice, and noted that the inter-campus benefits disparities involved all employees, not just those interested in domestic partner benefits. Plaintiff identified herself as "an alumnus of the University of Toledo's Graduate School, an employee and business owner" and signed only her name, though she used her University photograph. She did not mention her title or duties within the University…. Because of the response to her article, Plaintiff was immediately placed on administrative leave….
In a First Amendment Free Speech employment retaliation claim … a plaintiff must show that the speech involved "matters of public concern," that the state employer's interest "'as an employer, in promoting the efficiency of the public services it performs through its employees' … [does] not outweigh [plaintiff's] desire to 'contribute to public debate' like any other citizen," and that the speech was not made "pursuant to" the duties of plaintiff's employment…. Plaintiff was not attempting to fulfill any job duty in writing her article, but to present a personal opinion. Even if she attempted to give herself credence with the public by identifying herself, this does not satisfy the Garcetti test. Thus, Defendants' theory that Plaintiff spoke pursuant to her job duties does not defeat her First Amendment claim.
Defendants present two arguments concerning the balancing factor [the so-called "Pickering balance" –EV]. First, they argue that Plaintiff's specific authority automatically tips the balance in their favor. Second, they assert the specific weights and balances presented by this case demonstrate that the University's interest outweighs Plaintiff's.
The first argument relies on the Sixth Circuit's statement that when certain employees "speak on job-related issues in a manner contrary to the position of [their] employer" they have been insubordinate and a presumption arises that the balance weighs in the favor of the employer. Rose v. Stephens, 291 F.3d 917, 923 (6th Cir. 2002). Thus, "when an employee is in a policymaking or confidential position and is terminated for speech related to his or her political or policy views, there is a presumption that the Pickering balance favors the government." In determining whether this exception applies to a particular situation, the Sixth Circuit directs the use of the four categories describing permissible political patronage employment actions set forth in McCloud v. Testa, 97 F.3d 1536 (6th Cir. 1996). If a position falls within one of the categories, the presumption in favor of the employer automatically applies.
The first category includes "positions specifically named in relevant federal, state, county or municipal law to which discretionary authority with respect to the enforcement of that law or the carrying out of some other policy of political concern is granted." Category two includes "positions to which a significant portion of the total discretionary authority available to category one position-holders has been delegated." The third category consists of "confidential advisors who spend a significant portion of their time on the job advising category one or category two position-holders on how to exercise their statutory or delegated policymaking authority, [and] other confidential employees who control the lines of communications to category one positions, category two positions or confidential advisors." The [fourth] category relates to politically balanced positions. Id. A position may still be sufficiently "confidential" or "policymaking" for the Rose presumption to apply without fitting into one of the four categories….
Defendants assert that Plaintiff's position as Associate Vice President for Human Resources fits into either category two or three. Plaintiff responds with her Declaration which states that she was not delegated "significant" policy making authority and did not spend a "significant" amount of time advising Defendants. She concludes that she was a ministerial employee. While the contours of any delegation or time spent advising may be factual questions, whether any delegation or time spent are "significant" is a question of law for the Court.
Notably, Plaintiff's Declaration does not mention appointing authority. The Board of Trustees is charged, by Ohio law, with governing the university. Thus, it falls within category one. At the time Plaintiff was fired, the Board had adopted a policy delegating appointing authority to four specific positions, in addition to the President; Plaintiff's position was listed and Logie's was not. Further, not only did Plaintiff testify that she was responsible for employment decisions such as hiring and firing, but Ohio law states that all appointing authorities have that power. Jacobs testified that he had been directly involved in only a handful of terminations. Any delegation of the ability to hire and fire is clearly significant, especially due to the possibility of employment related lawsuits. Plaintiff does not present anything to restrict the import of her appointing power and instead focused on Jacobs' control of written policy. As such, the Court concludes that Plaintiff was vested with a significant portion of the statutory authority available, placing her within category two.
Even though Plaintiff fell within the second McCloud category, the presumption of insubordination will only apply if her statement related her policy view on a matter related to her employment. Plaintiff stated that she did not think homosexuals were civil rights victims. Not only does this statement directly contradict the University's policies granting homosexuals civil rights protections (such as the Equal Opportunity Policy), but as an appointing authority, Plaintiff was charged with ensuring that the University maintained those protections in employment actions. Thus, the Rose insubordination presumption applies. Plaintiff has offered nothing more than her claim that she "was never insubordinate to anyone" without any justification for why that would overcome (or even address) the presumption. Because the presumption holds, the balance of employee and employer concerns automatically tips in the employer's favor.
Defendants further argue that even if the Rose presumption does not apply, the actual weighing of employee versus employer interests in this case would clearly favor them. Plaintiff counters by asserting that her speech should be afforded the greatest protection.
In demonstrating the employer's interests in this case, Defendants again emphasize Plaintiff's position. As such, they emphasize her authority over employment actions and further note that even she has testified that she was serving as "an ambassador" for the University. Given her position, her statements against the rights of homosexuals could have done very serious damage to the University in three ways (all of which Defendants cited and stated multiple times, including in the termination letter). Though all three may be speculative and concern only what might happen, as noted above, the law does not require Defendants to wait for damage to occur.
First, her statements could disrupt the Human Resources Department by making homosexual employees uncomfortable or disgruntled. Though it did not enter into the actual consideration, Erich Stolz's letter to Defendants clearly demonstrated that effect: he stated that her letter not only made him individually uncomfortable, but it also reduced his respect for her professionalism. Plaintiff responds that mere offense is insufficient to justify her termination. That might be an appropriate response to Defendants' offense, but it does not address loss of cohesion in the Human Resources Department as a legitimate interest of her employer. Further, this addresses only the least of the three feared effects.
Second, Plaintiff's public statements could have interfered with the University's interest in diversity. Because of her statements, homosexual prospective employees might reconsider applications they knew she would review or withdraw them altogether. This concern removes a significant portion of Plaintiff's rebuttal that she has only acted fairly because she has not demonstrated how any applicants would know. Plaintiff also complains about consideration of the value of diversity as opposed to focus on teaching capacity alone. However, not only is that an overly simple description of the University's interest, any decrease in the capability of the University workforce could have an impact on instruction. If fewer qualified people apply, because some are homosexuals who know that the head of Human Resources (Plaintiff) does not think they deserve civil rights, then it could be that the quality of the eventual workforce will decline. Further, Plaintiff has not rebutted the concept that diversity itself (even with regard to non-faculty positions) improves the teaching function.
Third, as the termination letter stated, Plaintiff's public position could lead to challenges to her personnel decisions. In other words, Defendants feared lawsuits from homosexuals alleging sexual orientation or sexual harassment discrimination. This fear is clearly appropriate as her statement could be offered in a suit for either direct evidence of discrimination or for evidence of pretext (in rebuttal to a non-discriminatory reason). Further, Plaintiff's article could also lead to additional suits and grievances as people realize they may have a claim or the statement could be just enough to cause someone to decide to sue who otherwise might not have undertaken the expense and effort. Thus, Plaintiff's statements could subject the University to significant expense through more litigation or more difficult litigation (or other employment action challenges)….
Thoughts on the Ninth Circuit's Same-Sex Marriage Decision
1. This is going up to the Supreme Court. I suspect that the backers of Prop. 8 won't even ask for en banc review by the Ninth Circuit, since they're unlikely to win there. Depending on how quickly they file their petition for certiorari, the Court will either decide in late September to hear the case, or will decide this late this Spring. Either way, the Court will hear the case next Term, though probably not before the election. Though, for reasons I describe below, the decision only applies to states, like California, that recognized civil unions but not same-sex marriages, it's still a conclusion of national importance, one on which the Supreme Court is likely want to speak. And even if, as described below, the decision is limited just to California, I think the Court will still think it's important for it to resolve the question.
2. The Ninth Circuit did not decide that all opposite-sex-only marriage recognition rules are unconstitutional. Rather, it concluded that when a state has already recognized same-sex civil unions that are functionally equivalent or nearly equivalent to marriage, denying the symbolic recognition provided by the label "marriage" is no longer rationally related to a legitimate government interest. The court did not decide whether the general constitutional right to marry that applies to same-sex couples, or whether opposite-sex-only recognition rules are generally unconstitutional on the grounds that discrimination based on sexual orientation requires "strict scrutiny" or "intermediate scrutiny" and fails that scrutiny. It only applied the rational basis test, and held that the regime of civil unions but not same-sex marriage lacks a rational basis.
Note that, if the decision is upheld, this means that the arguments that civil unions are a "slippery slope" to same-sex marriage were absolutely right: The recognition of civil unions changed the legal landscape in a way that made it more likely for courts to also conclude that same-sex marriage must be recognized, too.
3. The Ninth Circuit's opinion also stresses that same-sex marriage was once recognized (by court decision) and then derecognized (by the voters). If the opinion is limited to such situations, this would mean that its logic would only be applicable to California, and possibly Hawaii.
But I don't think that the opinion's logic can be so limited. The court reasoned that same-sex couples can't be denied the same right that opposite-sex couples have — the right to have their relations recognized as "marriage," at least once they have the same tangible rights under state civil union law. But that denial would be present regardless of whether (1) the label "marriage" was once given and then taken away or (2) was never given in the first place. In either case, a benefit (the label "marriage") is given to some but denied to others. Either way, opposite-sex couples would have a right (to the label "marriage") that same-sex couples would not. Such a discrimination would have to be rationally related to a legitimate government interest. And under the Ninth Circuit's reasoning, such a rational relationship is absent here, which would doom all state regimes that recognize civil unions but not same-sex relationships.
Moreover, if California had no obligation to provide equal treatment for same-sex marriages and opposite-sex marriages (at least when civil unions were recognized), then the sovereign rulers of California — the people, acting through the constitutional amendment process — are entitled to correct their employees' (the California Supreme Court Justices') conclusion to the contrary. The Ninth Circuit's holding that the California voters are not entitled to correct their employees this way, because such correction is not "rational," means that California and other states weren't entitled to have this particular discrimination in the first place.
4. Now on to the question whether denying the label "marriage" to same-sex unions, once civil unions that provide all the tangible benefits of marriage are recognized, is rationally related to a legitimate government interest. Here, I think the Ninth Circuit majority erred.
a. First, note that this debate is just about the label "marriage," and thus about the message that the label sends. The court concluded that Prop. 8 was unconstitutional because this symbolism mattered, and mattered a lot — the message is injurious to same-sex couples' (and individuals') dignity, and may lead to more societal discrimination against gays and lesbians. But if this symbolism of "disapproval of … [same-sex] relationships" (Op. 77) is so significant, then it may be plausibly believed to subtly push some people away from same-sex relationships to opposite-sex relationships. To so conclude, you don't need to believe that gays and lesbians, in the sense of people who are solely attracted to people of the same sex, can be "cured" in the sense of being turned straight. You only need to focus on the substantial number of bisexuals, and assume that their behavior can be affected, in some instances and for some people, by the message of "disapproval of …. [same-sex] relationships."
This is relevant because it bears on how the Ninth Circuit responded to the arguments that the desire to have a greater fraction of children be raised by opposite-sex biological parent couples forms a rational basis for the law:
We need not decide whether there is any merit to the sociological premise of [the Prop. 8 backers'] first argument — that families headed by two biological parents are the best environments in which to raise children — because even if [the backers] are correct, Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California" (pp. 56-57) is beside the point, when it comes to the rational basis test.
But family formation is not just driven on who has the legal "ability" to become parents. It is also driven by social attitudes. It is not irrational to conclude that, if the refusal to recognize same-sex marriage has powerful symbolic effect — which is what the Ninth Circuit argued in striking down this refusal — it may likewise have a powerful symbolic effect when it comes to people's choices about whom to parent with. As it happens, I'm quite skeptical that this effect will be substantial enough to make a difference, and I on balance think that recognizing full same-sex marriage is good policy. But under the rational basis test that the Ninth Circuit is purporting to apply, a court must uphold a law so long as it rests on a plausible view of the facts, regardless of whether the judges agree with the lawmakers on those facts.
5. The court also rejects the argument that Prop. 8 is rationally related to a legitimate government interest in "'proceed[ing] with caution' when consider changes to the definition of marriage" (p. 64). The court suggests that some laws might have such a rational basis; and recall that the court is ostensibly applying the test that's applicable to a vast range of economic regulation, which is often defended on bases no more scientifically provable than that. But the court said that the law isn't rationally related to this interest:
Had Proposition 8 imposed not a total ban but a time-specific moratorium on same-sex marriage, during which the Legislature would have been authorized to consider the question in detail or at the end of which the People would have had to vote again to renew the ban, the amendment might plausibly have been designed to "proceed with caution." In that case, we would have had to consider whether the objective of "proceed[ing] with caution" was a legitimate one. But that is not what Proposition 8 did. The amendment superseded the [California Supreme Court cases recognizing a right to same-sex marriage under the state constitution] and then went further, by prohibiting the Legislature or even the People (except by constitutional amendment) from choosing to make the designation of 'marriage' available to same-sex couples in the future. Such a permanent ban cannot be rationally related to an interest in proceeding with caution.
I don't see how this so. The ban is of course not "permanent" — it can be repealed the same way that it was enacted, by a simple majority of California voters (coupled with either enough voter signatures or enough legislative votes to put it on the ballot). Indeed, changes in attitudes on same-sex marriage, especially among younger voters, suggest that soon, perhaps even in a few years, this amendment would indeed have been overturned. Those who want to "proceed with caution" in this field, especially by making sure that a major change to such an important societal institution is only made with the buy-in of the voting public and not just of judges or legislators, might find it perfectly rational to withdraw from California courts and legislatures (or even from the reach of the statutory ballot measure, as opposed to a constitutional ballot measure) the power to recognize same-sex marriages and to leave it to the California voters in their sovereign power to amend the constitution.
6. Of course, none of this deals with the arguments that same-sex marriage under a more demanding test than the rational basis test — for instance, "strict scrutiny," which requires that classifications or restrictions be "narrowly tailored to a compelling government interest," or "intermediate scrutiny," which requires that they be "substantially related to an important government interest." Among other things, both of these tests would require courts to look closely at the factual evidence for the claims of narrow tailoring and substantial relationship, rather than to defer to any plausible view of the facts, which is what the "rational basis" test requires. Such tests might be called for if a court concludes that the traditionally recognized constitutional right to marry should be understood as also covering same-sex couples, or that discrimination based on sexual orientation should be treated like sex or race discrimination, or that discrimination based on sexual orientation is a form of sex discrimination. I speak here only of the Ninth Circuit's conclusion, which is that the California rule of recognizing same-sex civil unions but not same-sex marriages lacks any rational basis.
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