Only A Temporary Victory For Gay Marriage

(Frequently updated with emerging information)

Reports indicate that a federal judge in California has struck down the state’s ban on gay marriage (known as Prop 8) as unconstitutional based on equal protection and due process grounds.  While the full decision is not yet available, The quotations emerging show a clear direction — the judge hopes to strike down not only Prop 8, but all state bans on gay marriage.  (UPDATE: Complete text may be available here. Scribd is overloaded, so here might be a better source.) The ruling even condemns civil unions as inadequate.  In short, the judge is trying to craft a wide-reaching decision that will be a comprehensive, final blow on behalf of gay marriage, similar to the role that Roe v. Wade played for abortion rights in 1973.

My immediate reaction is that it won’t work.  Here’s why:

The ruling itself was no surprise.  The judge tipped his hand when he made an end-run around normal procedures for rule changes to endorse a request from the plaintiffs to allow cameras into the courtroom as part of an openly-stated plan to “expose”, intimidate, and harass defense witnesses.  The Ninth Circuit also endorsed the move, only to be slapped down by a unanimous Supreme Court.

That indulgence in ideological short-circuiting appears to be reflected in the sweeping language of the ruling as well.  For example, the judge condemns “stereotypes and misinformation” as the basis for Prop 8, staking a personal position on a topic apparently irrelevant to the legal issues before him.  In trying to strike a blow on behalf of broader social tolerance for homosexuals, the judge undermines his credibility as a neutral arbiter worthy of deference on review. If the judge himself was gay, that also will support charges of bias. It is likely that higher courts will take note and grant the district court judge less deference than supports of the ruling would hope for.

Of course, the Ninth Circuit is reliably skewed in favor of progressives on social issues, so the first stage of appeal will almost certainly result in an affirmation of the district court decision.  But the Supreme Court as currently constituted is much less friendly.  And while the decision will almost certainly come down to a 5-4 decision with Justice Kennedy holding his customary swing position, the moderate Kennedy may be more put off by the sweeping and emotionally-laden rhetoric in the district court’s opinion.

It is also less than clear whether the Equal Protection and Due Process Clauses can be stretched as far as the district court judge wants to take them at the current time.  The interpretation appears to be that there exists a fundamental right to marriage that cannot be selectively limited by statutes that state who may marry whom.  But to embrace that interpretation of the Equal Protection Clause would require, among other things, overturning anti-polygamy laws as well. (I reject the notion that the ruling would necessitate allowing marriage to children or animals, as some Prop 8 supporters claim.  Pedophilia and bestiality aren’t even close to as tightly linked to the scenario of gay couples as polygamy is.) It would also carry with it a host of policy concerns about increased impacts on social programs.  The Supreme Court will certainly consider the factors that the district court judge may have rushed past in his zeal to strike a blow for social justice.

Law professor William Jacobson has similar concerns:

Throughout the opinion, the Judge goes into great detail regarding trial testimony and justifications for Prop. 8. The Judge then holds, in essence, that the justifications are irrational and have no legitimate societal basis.

The Judge even designated a section of the opinion “Credibility Determinations.” Many commentators think the Judge was trying to insulate the opinion from appeal since appeals courts do not normally overturn credibility determinations, since only the trial judge observed the witness.

In this case, the Judge seems to be trying too hard to insulate the opinion, and I doubt that on such a momentus finding of a new constitutional right for same sex marriage that an appeals court, much less the U.S. Supreme Court, will care much about the credibility of witnesses as a basis for a legal ruling.

Even if the Supreme Court does uphold the law, the result could even then not be final.  The reason the Republican Party has exploited the gay marriage issue in recent elections is because polling consistently indicates clear majorities in most states against it.  (And although civil unions result in a much more complex set of voter preferences, the judge’s decision throws that compromise option out.)  It is highly questionable whether the backlash against a Supreme Court affirmation would result in a successful constitutional amendment permanently enshrining anti-gay prejudice, but you can be sure it would be a long and hard fight.  This is the problem with using court decisions as a replacement for the hard work of education and persuasion in making sweeping social changes.

Lest anyone should misunderstand, let me note that I personally support marriage rights for gay couples.  I think court decisions are a very bad way to achieve that goal, for the reasons discussed above as well as because court decisions tend to lengthen political conflicts rather than resolve them.  It is worth remembering that in 1973 there was a clear trend among the states in favor of abortion rights.  The main accomplishment of Roe may have been to make abortion formally legal, but the decades-long firestorm of controversy has made actual exercise of those rights difficult in many areas of the country.  Using the courts is a way to an emotionally satisfying quick “win” on issues where the legal elite runs ahead of broader social attitudes, but that emotional rush often leads to a big crash in the longer term.  Temporary success can lead to long-term failure that is even more firmly entrenched than it was before.

I also don’t think that every desirable social policy enjoys the status of constitutional right.

But the game is definitely on and the result will be one of the most significant Supreme Court decisions in the last 50 years.

UPDATE: For those who want to track the legal commentary on this case from a source that I think is (1) extremely highly qualified and (2) likely to disagree with me on this, I recommend following Prof. Dale Carpenter on the Volokh Conspiracy.

UPDATE: Supporters of Prop 8 have moved for a stay pending appeal (routine in cases where a district court holding results in a massive shift in the law), but if the judge is as strongly opinionated about his underlying policy goals on this issue as he appears to be, I think a stay is extremely unlikely at this stage.

Author: LOGAN PENZA

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