The lead house editorial in today’s Washington Post has a motley mix of sound and unsound observations.
On the plus side, the editorial recognizes (as I discussed here) that Reinhardt “mischaracterized Supreme Court precedent [Romer v. Evans] to justify the nullification of Proposition 8.” As the editorial points out, unlike Colorado’s Amendment 2, Prop 8 “left intact the full panoply of substantive legal rights enjoyed by same-sex couples.”
Among the legal weaknesses in the editorial is its claim that because Reinhardt’s ruling “applies only to California, it … should not go to the Supreme Court as a test case on same-sex marriage.” I gather that the Post doesn’t want Reinhardt’s ruling to be the “test case” because it correctly finds it “a wobbly piece of jurisprudence that should not serve as a model.” But the Post decries the fact that Reinhardt’s ruling may have the “possible negative consequences” of “discouraging states from adopting civil unions or domestic partnerships for fear that they may one day be forced to recognize same-sex marriages.” Those consequences are especially likely in whichever of the nine states within the Ninth Circuit that don’t currently provide for civil unions. So that’s one good reason to have the Supreme Court review the ruling.
More broadly, Reinhardt’s dismissal of the procreation and childrearing rationales for marriage has sweeping implications for traditional marriage throughout the country. Those implications are multiplied because of California’s sheer size. If the Supreme Court were to deny review, its action would be widely interpreted, and not unreasonably, as a de facto endorsement of a constitutional right to same-sex marriage. Conversely, if it granted review, its review wouldn’t be limited to a thumbs-up or thumbs-down on Reinhardt’s actual holding. The full array of constitutional arguments for and against Prop 8 would be before the Court.