It’s not a good sign when a 77-page judicial opinion contains a falsehood in its first sentence. Judge Stephen Reinhardt, the most notorious liberal activist on the oft-overturned Ninth Circuit Court of Appeals, begins his opinion for the 2–1 majority in the California same-sex-marriage case, Perry v. Brown, thus: “Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike.” This is only true in a legal fantasy land in which the California supreme court’s unilateral creation of a right to same-sex marriage is treated as equivalent to the constitution itself.
Following that decision, the people of California went to the polls and passed Proposition 8, putting an end to the judiciary’s lawless 143-day experiment in permitting same-sex couples to marry. Clearly, the majority of Californians did not think the state supreme court interpreted their constitution correctly, which is why they chose to amend it to reverse the court’s decision. But in the ensuing months, the Ninth Circuit would have us believe, that earlier decision took on the same status as the state constitution. This is not a plausible legal theory.
That proposition is nonetheless central to Reinhardt’s strategy. His claim is that the State of California, in Proposition 8, did not merely decline to grant marriage rights to gays and lesbians but stripped them of an accepted right — and did so without any rational basis, inspired only by animus toward them.
This is a textbook example of the “ratchet effect” — for liberals, every change they desire is a blow struck against stultifying tradition while every change they do not desire is dismissed on the grounds that the new status quo is sacrosanct. In the courts, this pattern appears in a predictable on-again, off-again respect for precedent, depending on whether the precedent advances liberal aims.
There is something interesting about Reinhardt’s incrementalism in this ruling. He ignored the broad due-process reasoning of district judge Vaughn Walker in the court below and chose instead to base his ruling on the narrow ground that in a state that permits recognition of same-sex couples’ unions with all the “incidents of marriage,” it is a violation of equal protection to “deprive” them of the powerfully symbolic label of “marriage” itself. Which is to say, the judge finds an alleged animus against homosexuals in the very electorate that has invested them with such generous domestic-partnership rights. Reinhardt offered no opinion on whether a state that has provided no legal recognition of same-sex couples’ relationships would be in violation of the Constitution. Roughly half the states in the Union fit that description.
Reinhardt’s incrementalism is squarely aimed at Justice Anthony Kennedy, whose 1996 opinion for the Court in Romer v. Evans (overturning Colorado’s constitutional reversal of gay-rights antidiscrimination ordinances) is the constant touchstone of Reinhardt’s reasoning.
If the Supreme Court affirms the Ninth Circuit and takes its reasoning seriously, the result will be a house divided — no same-sex marriage wherever there are no same-sex civil unions, and a high risk of judicially invented marriage rights wherever there are such civil unions.
As Lincoln knew, on a fundamental moral question the nation must become all one thing or all the other. Ultimately, the people of the nation, who are the real owners of the Constitution, may have to weigh in on whether the truth about marriage — the union of a man and a woman to make a family — will prevail over the inventions of the judges.