Bench Memos

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Initial Assessment of Ninth Circuit’s Anti-Prop 8 Ruling


Some quick comments on Judge Reinhardt’s majority opinion:

1. From the very first line of his opinion (“Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples” (emphasis added)), Reinhardt persistently conflates the California constitution with the state supreme court’s lawless misinterpretation of it. That trick is essential to his line of reasoning—including his extensive reliance on the inscrutable ruling in Romer v. Evans (1995)—for if one recognizes that the people of California, by adopting Proposition 8, exercised their sovereign power to correct the state supreme court’s misreading of the state constitution, then it follows that they didn’t take away anything that the state constitution ever really conferred.

(I recognize that a federal court, in applying state law, is generally obligated to accept a state supreme court’s authoritative construction of state law. But it’s far from clear to me that that proposition properly extends here.)

2. For Reinhardt, “‘marriage’ is the name that society gives to the relationship that matters most between two adults.” (P. 37.) The right to marry that the state supreme court conferred on same-sex couples “symbolize[d] state legitimization and social recognition of their committed relationships.” (P. 5.)

Notice what’s missing from Reinhardt’s description? Any recognition that the very institution of marriage arose and exists in order to encourage responsible procreation and childrearing.

3. On pages 56-63, Reinhardt does confront the argument that Prop 8 advances California’s interest in procreation and childrearing, but his analysis is badly flawed:

a. Reinhardt first undertakes to address the argument that “children are better off when raised by two biological parents and that society can increase the likelihood of that family structure by allowing only potential biological parents—one man and one woman—to marry.” But he somehow finds it dispositive that Prop 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.” What he utterly ignores is that it is eminently reasonable to believe that the less marriage is centered around the concerns of responsible procreation and child-raising, the less well marriage will serve those goals. That’s an elementary lesson about mission confusion.

The redefinition of marriage to encompass same-sex couples fatally severs the link between marriage and procreation. That’s why Reinhardt has to misdescribe marriage (see point 2).

b. Reinhardt also addresses the argument that “marriage reduces the threat of ‘irresponsible procreation’—that is, unintended pregnancies out of wedlock—by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units.” He says that this argument necessarily rests on the proposition that “opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage’” (emphasis in original)—a proposition he dismisses as not “even conceivably plausible.”

It is odd that Reinhardt defines “irresponsible procreation” to mean only “unintended pregnancies out of wedlock.” Given how marriage benefits children, it is entirely reasonable to regard intended pregnancies out of wedlock at as least as irresponsible. And, again, it is entirely reasonable to believe that the more marriage is devalued as the vehicle for responsible procreation (a devaluation that necessarily flows from the redefinition of marriage to include same-sex couples), the more out-of-wedlock procreation, intended or unintended, there will be.

4. Reinhardt opines that Proposition 8 doesn’t advance California’s interest in “proceed[ing] with caution” in redefining marriage. (Pp. 64-66.) Here again, he plays his game of obscuring the role of the California supreme court, as he maintains that “the State” didn’t proceed with caution by first “provid[ing] same-sex couples the right to marry” and enabling more than 18,000 such couples to marry before adopting Proposition 8.

Reinhardt also contends that there is “no rational connection”—none at all—“between the asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.” His contention rests on the fallacy that re-amending the state constitution would be exceptionally difficult to do.

Reinhardt further claims that “it is not credible to suggest that ‘proceed[ing] with caution’ was the reason the voters adopted the measure.” Whether or not it was the exclusive reason, it certainly is credible to suggest that it was part of the reason. Reinhardt contends that the “avowed purpose of Proposition 8 was to return with haste to a time when same-sex couples were barred from using the official designation of ‘marriage,’ not to study the matter further.” But here he ignores the fact that the California supreme court construed the voters’ intent as leaving in place existing same-sex marriages. He also ignores the elementary fact that California voters could “study the matter further” by observing what happens to marriage in other states and other countries.

5. If one accepts Reinhardt’s reasoning that dismisses the core rationales for traditional marriage, I don’t see how traditional marriage laws could survive anywhere. In other words, the sweep of Reinhardt’s reasoning is far broader than his purportedly narrow holding.

6. Former judge Vaughn Walker’s purported factual findings play virtually no role in Reinhardt’s ruling. That’s further evidence that Walker’s whole trial was a pointless (and time-consuming) farce.


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