As various folks have pointed out, Judge Reinhardt has clearly crafted his opinion in the Prop 8 case for an audience of one person, Justice Anthony Kennedy. That’s evident in Reinhardt’s effort to camouflage his opinion as narrow (when in fact his reasoning would invalidate all traditional marriage laws). And it’s especially true in Reinhardt’s extensive claim (see pp. 42-55) that his ruling follows directly in the tracks of Kennedy’s majority opinion in Romer v. Evans (1996).
In fact, though, neither of the two points that Kennedy sets forth as central to his analysis in Romer is presented by Prop 8.
Kennedy’s “first point” about Colorado’s Amendment 2 is that it “impos[ed] a broad and undifferentiated disability on a single named group”: “It identifies persons by a single trait and then denies them protection across the board.” (Emphasis added.) By contrast:
In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.
But as Reinhardt acknowledges, Prop 8, far from imposing “a broad and undifferentiated disability,” has a “unique and strictly limited effect” (p. 6) and made “a singular and limited change” (p. 34). It leaves in place California’s domestic-partnership law, which extends to same-sex couples all the rights, obligations, and incidents of marriage.* All that Prop 8 does is restore the traditional definition of marriage, which leaves every unmarried person in California free to marry an unmarried person of the opposite sex (subject to age and other routine requirements). In other words, Prop 8, properly understood, doesn’t impose any disability at all, and even those who think it does must recognize that its effect is “strictly limited.”
Reinhardt concedes this difference, but asserts that it does “not render Romer less applicable.” (Pp. 45-46.) So much for respecting Kennedy’s primary point.
Kennedy’s “second and related point” is that Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.” (Emphasis added.) It thus “raise[d] the inevitable inference that the disability imposed is born of animosity toward the class of persons affected.” (Emphasis added.) Kennedy further made clear that what he meant by “animus” (and “born of animosity”) is “‘a bare … desire to harm a politically unpopular group.’” Addressing the justifications offered by Colorado, Kennedy stated that the “breadth of [Amendment 2] is so far removed from these particular justifications that we find it impossible to credit them.”
This point also clearly doesn’t apply to Prop 8. For starters, Prop 8, far from having “sheer breadth,” is (by Reinhardt’s own account) “strictly limited,” and its justifications are closely connected to it. In addition, Reinhardt himself disclaims the “suggest[ion] that Proposition 8 is the result of ill will on the part of the voters of California” and instead draws the “inevitable inference” of voters’ “disapproval of gays and lesbians as a class.” (P. 72.) But “ill will” (or “a bare … desire to harm”) is precisely what Kennedy meant in Romer by “animus.” Further, Reinhardt’s “inevitable inference” of voters’ “disapproval” arises only because he has wrongly rejected the justifications for Prop 8 (see points 3 and 4 here).
In sum, whether Reinhardt’s reliance on Romer is an effort to hoodwink Kennedy or to pander to him, it in fact gives Kennedy no fair basis to vote to affirm Reinhardt’s ruling.
* This explanatory sentence was not part of my original post; I added it on 2/9.