Notwithstanding its many defects, the First Circuit’s opinion ruling against DOMA provides additional reasons for the Ninth Circuit to grant en banc rehearing of Judge Reinhardt’s anti-Prop 8 ruling in Perry v. Brown:
1. The First Circuit relies on the fact that “almost all” states can “readily amend” their constitutions” and that they thus “can protect themselves against what their citizens may regard as overreaching” by “state judges [that] would impose same-sex marriage on unwilling states.” (Slip op. at 28.) Reinhardt’s opinion, by contrast, rules that the federal Constitution barred the citizens of California from exercising their sovereign power to correct the state supreme court’s overreaching in inventing a state constitutional right to same-sex marriage.
2. The First Circuit panel emphatically rejects the proposition that preservation of marriage reflects “moral disapproval” of homosexuals. (Slip op. at 29.) Reinhardt, by contrast, attributes to California’s voters, in adopting Prop 8, “disapproval of gays and lesbians as a class.” (Reinhardt opinion at 72.)
3. The First Circuit panel expressly acknowledges that the Supreme Court’s 1972 ruling in Baker v. Nelson remains binding precedent and prevents it from adopting arguments that “presume or rest on a constitutional right to same-sex marriage.” (Slip op. at 12.) While Reinhardt claims that Baker “is not pertinent” to his ruling (Reinhardt opinion at 47 n. 14), his reasoning would in fact invalidate all state marriage laws and is therefore contrary to Baker.