Bench Memos

Judge Reinhardt, the Perry Case, and Justice Kennedy

Today at Public Discourse, I have an essay titled “The Ninth Circuit’s Desperate Targeting of Justice Kennedy,”  Here’s a sample:

[Judge Reinhardt] is desperate to bring this case into line with Romer v. Evans, a 1996 ruling of the Supreme Court overturning a constitutional referendum in Colorado. In Colorado, the people had acted constitutionally to prohibit state and local legislative bodies from adding “sexual orientation” to local anti-discrimination law, and to overturn several municipal ordinances that had already done so. For a 6–3 Supreme Court, Justice Anthony Kennedy had described the people’s amendment as a “new” rule, uniquely attacking homosexual persons as a class, and unexplained by anything other than irrational “animus” against them.

This is exactly how Reinhardt wants the Supreme Court to see Proposition 8. Every element of his opinion is engineered to assimilate this case to Romer—the preposterous judgment that Prop 8 is a “new substantive rule,” the setting up and knocking down of straw-man arguments for the amendment, the misunderstanding of the vital connection between marriage and procreation, and the pat conclusion that no “rational” differentiation can be made between same-sex couples and opposite-sex couples that will justify the “deprivation” of marriage rights briefly given to the former by “the state.” Reinhardt even throws in the insupportable claim that protecting marriage as it has always existed “stigmatizes” gays and lesbians as “inferior” persons. The truth is that it merely recognizes the obvious fact that their relationships cannot rightly be called “marriages.”

In short, Judge Reinhardt has cooked a dish intended to appeal especially to Justice Kennedy, the author of Romer. . . .

I find it interesting that everyone recognizes the essentially political character of the Ninth Circuit ruling–that is, its heedlessness of jurisprudential norms in pursuit of a political objective.  Jonathan Rauch, a gay marriage advocate who has at times shown signs of respect for constitutional norms, is positively delighted with the “smart judging” of Reinhardt precisely because it is lacking in “jurisprudential logic” but clever politically.  As I explain in my Public Discourse piece, Reinhardt may have been too politically clever by half.

I should also note that I’m not so sure I agree with Ed Whelan (see his point 5) or Eugene Volokh (see his point 3) that Reinhardt’s logic necessarily implicates the fate of marriage generally.  It can be read that way–but it need not be.  This would be about the only point on which I agree with the Washington Post.


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