Ari Ezra Waldman | California | Law - Gay, LGBT | News | Proposition 8

Proposition 8 Ruling Analysis: Why the Narrow Holding?


Even though Tuesday’s Ninth Circuit decision in Perry v. Brown was narrowly focused on the unique situation that precipitated Prop 8 in California, it could have broad implications. Today, I would like to expand on this point and theorize why the panel decided the way it did. I anticipate that this will answer some of the questions posted to yesterday’s post; I hope to answer all questions in subsequent columns. 

PanelAs you recall, the Ninth Circuit affirmed Judge Vaughn Walker’s district court ruling that Prop 8 is unconstitutional. While Judge Walker decided that same-sex marriage bans violate due process (by denying gay people the fundamental right to marry) and violate equal protection (by treating gay people differently than straight people for no legitimate reason), the Ninth Circuit affirmed on narrower grounds – namely, Prop 8 violated equal protection because it took away a right to marry for no other reason but to harm and discriminate against gay people. The case quoted liberally from Romer v. Evans, another (albeit broader) case where rights were taken away from gays simply because Colorado wanted to discriminate against a class of persons it didn’t like. 

We are left wondering the following: Why use this narrow ground? What does the narrow affirmance mean for the likelihood that the Supreme Court will take the case? Does the narrowness of the opinion make a Supreme Court affirmance more or less likely, assuming the high court grants review? How could this case impact other states considering gay marriage bans or marriage equality legislation? If it is California-specific, how could this case impact other gay rights cases?

A few answers to these questions, AFTER THE JUMP...

There is one legal and at least three strategic reasons for a narrow holding.

When a federal court can decide a case without reaching broader constitutional issues, it must do so. This tradition is a product of the Constitution’s Case and Controversy Clause, which requires federal courts to only decide active cases before them, and Supreme Court precedent. Not every issue a constitutional issue; the document’s survival as lasting governing law depends on stability. When narrower grounds allow the entire case to be put to rest – whether those narrower grounds are statutes or more focused constitutional law – the court has no reason to reach broader issues.

That long-standing tradition is likely a justification for the court’s strategic decision, but the panel majority could be pursuing different strategies. Some experts are already treating yesterday’s decision as strategically similar to Judge Walker’s original decision, both of which quote liberally from and rely heavily on opinions written by Justice Anthony Kennedy, the supposed swing vote on the high court. Judge Reinhardt’s opinion relied squarely on Romer; Judge Walker quoted Romer, Lawrence, and other Kennedy decisions.

But, this theory proves too little. Judge Reinhardt could have nodded to Justice Kennedy through the broad due process and equal protection holdings he specifically declined to address because, as Judge Walker noted, those holdings require liberal reliance on Romer and Lawrence.

Perhaps the Ninth Circuit is anticipating the three possible reactions from the Supreme Court. The narrow holding makes it easier for the Supreme Court to take the case and summarily affirm, or simply deny review. Under this theory, the laser-like focus on California gives the high court little opportunity to find fault: the official interpretation of Prop 8’s effect is a state law matter, so it cannot quibble with Judge Reinhardt’s argument that taking away only the word “marriage” while leaving state policies that see gay people as great parents and capable of stable, loving, and productive relationships; the narrow decision has few direct implications on other states and other cases. A summary affirmance or denial would be a victory: marriage equality could return to California!

But, this theory assumes too much. If there are no issues to discuss, why grant and summarily affirm? Maybe that’s what Judge Reinhardt wants. Though Judge Smith’s dissent, which quarreled with the majority’s interpretation and use of rational basis review, gives the Court the chance to grant review to clarify the standard for discrimination on the basis of sexual orientation, the narrow decision was not necessary to do that. What’s more, the Court would not take an incomplete case just to determine a standard of review that it has left unclear for years.

Gay-Marriage1It seems more likely that the Ninth Circuit is playing for time in one of two ways. Perhaps the Ninth Circuit sees both a conservative Supreme Court and gay marriage as an ongoing hot political controversy. In that context, the argument goes, neither the country nor the Supreme Court are ready to see a fundamental right to marry for gay persons and are as yet unwilling to say there is no reason to deny the word “marriage” to gay couples. The narrow holding specific to California is a stop-gap measure meant to provide a gay marriage victory without the political and sociological disruption caused by, say, Roe v. Wade.

There is merit to that, and not only if you prefer slow, moderate progress to rapid change that risks a backlash. Federal courts cannot withstand endless institutional and popular backlash. They have neither the power of the purse nor an army to enforce their judgments, and when they fall into disrepute, they risk being nullified or turned into pawns of the political process. Both sides of the aisle do this in reaction to perceived judicial overreach: Nixon built entire campaigns railing against the Warren Court’s criminal procedure jurisprudence, and President Obama and the Democratic Party are hitting the Roberts Court over Citizens United.

Yet, that fear of going too far infantilizes our courts and judges and ignores the bold importance of Brown v. Board of Education, Mapp v. Ohio, Gideon v. Wainwright, and other precedent-setting decisions. More importantly, though, in order for this strategy to work, we need another case to wind through the courts from beginning to end. A denial of certiorari in this case would pretty much end the Perry saga, Judge Walker’s decision would be affirmed, and his order requiring California to issue marriage licenses would go into effect in short order. The narrow Ninth Circuit holding means that while the case would have declared a denial of same-sex marriage rights unconstitutional – something unheard of just 10 years ago – it will likely have little effect on all the other states with marriage bans that did not go through the same back and forth that characterized California’s marriage equality story. So, we would need a new case, on facts with broader applicability.

That is, unless the Supreme Court takes the case and reverses. The Court could come up with any number of reasons, ranging from the standard of review (unlikely), standing (less likely), to a flat rejection of Judge Reinhardt’s narrow holding. A reversal would send the case back to the Ninth Circuit, at which point the same panel would assess the Supreme Court’s instructions and, depending upon the ground for reversal above, issue the broader decision following Judge Walker. That would take time, and that’s exactly the point. From the time Prop 8 passed in 2008, the number of Americans living in states with marriage equality has more than doubled; Washington state, Maryland, Maine, and now, perhaps, Illinois are either considering marriage recognition bills or are on the cusp of welcoming gays into the marriage fold. Time is what we may need for larger majorities to favor same-sex marriage, for more states to extend marriage rights, for more people to get married, for DOMA to be declared unconstitutional or repealed, and for more of our straight friends and neighbors to see that gay marriage is a good thing. A later decision could come in a context similar to the political background of Lawrence and Loving, where most states had already discarded or stopped enforcing their anti-sodomy and anti-miscegenation laws, respectively. This wraps the Ninth Circuit and the Supreme Court within a blanket of institutional and popular support.

All this has us wondering if the Ninth Circuit’s decision was as narrow as the chattering classes are suggesting. It is narrow in the sense that there were broader possible holdings that could have immediately affected the constitutionality of marriage bans in other states (the decision’s limited applicability outside California does mean that marriage bans in other states or territories in the Ninth Circuit, for example – from Alaska to Hawaii, and from Guam to Idaho – should remain untouched); it is broad in that Perry is still precedent for the inherent equality of gay persons when it comes to marriage. No federal appellate court has ever said something like that. Just like Major Witt’s “Don’t Ask, Don’t Tell” case helped created precedent to support Edith Windsor’s challenge to the inaptly named Defense of Marriage Act, so too will Perry create helpful precedent.

I cannot stress that enough. Votes come and go, and they play a role in helping courts make important decisions on controversial topics. But, the greatest asset to a future decision declaring all bans on gay marriage unconstitutional is a previous decision declaring one ban on same-sex marriage unconstitutional.

Stay tuned to Towleroad for my next post answering more questions about Perry. Thanks for your patience.


Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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  1. As usual, so thorough. Rather than NYT or any other source, I can count on AEW for the best and most layman-friendly analysis on this subject. Thank you!

    Posted by: matt b | Feb 9, 2012 10:47:32 AM

  2. We do NOT need "more time" for people to "come around." NO. Enough is enough. I'm sick of people employing this argument. Civil rights shouldn't have to wait for popular opinion, and we shouldn't be entertaining the notion in our fight; it lessens the ethical gravity of our case.

    Posted by: Nathan | Feb 9, 2012 10:53:31 AM

  3. Perry v. Brown will not be the case that secures marriage equality across the country. It is necessary first for the Supreme Court to issue a definitive ruling on what level of scrutiny is properly applied to sexual orientation and that will come with the DOMA challenges. There are too many challenges in too many jurisdictions in the country for them not to take this case and settle the question nation-wide. It is here that I believe that they will decide that heightened scrutiny is applicable for such laws, leading the way for a more robust marriage equality decision in the lower courts.

    Reading this decision, it becomes obvious that using the rational basis test to adjudicate laws that burden gay people is becoming an anachronism. Given our current-day understanding of human sexuality, we can no longer accept unsubstantiated sociological perceptions by straight people on such a complex scientific field as a standard by which such laws are measured. The 9th Circuit seemed strained to strike this law down -- it had to think of any possible basis the people had for passing it and explain how it was completely irrational or how Prop 8 didn't actually advance that interest. For the most part, they were unable to do the former. They had to rely on the assumption that perhaps those interests were valid, but Prop 8 didn't actually advance any of them. This decision, taken literally, would not prevent a more complex, intricately phrased referendum from withstanding rational basis scrutiny that would, ironically, more profoundly affect gay people.

    Posted by: Bill S. | Feb 9, 2012 11:04:09 AM

  4. Didn't we have the same situation in Maine? Where the right was granted and then taken away? Sounds like we may also end up in a similar situation in Washington?

    Posted by: Brad Dixon | Feb 9, 2012 11:08:21 AM

  5. As this case should form precedent in the 9th circuit, would this ruling also apply to any other reversal of equal marriage within the circuit? I am thinking of Washington state where the legislature has now approved same-sex marriage. Would not a voter initiative there also fail the 9th circuit's test?

    Posted by: Jim | Feb 9, 2012 11:14:38 AM

  6. @ari: I wonder if at some point you'd comment on Judge Smith's dissent, which struck me as amazingly weak even for an anti-equality opinion.

    Before Tuesday, one advantage I saw in a narrow opinion was the chance (based on some his questions and comments in oral argument) that Smith might be willing to join it.

    We hear a lot of complaints of judicial activism from the right, but Smith's dissent seemed to come from a world in which circuit court judges can just pretend that the Scalia dissents were actually the majority opinions in Romer & Lawrence.

    Posted by: Mark | Feb 9, 2012 11:15:04 AM

  7. Excellent as Usual, Ari.

    But what about the challenges to DOMA currently making their way towards the Supremes? Couldn't the "narrowness" of the Prop 8 ruling allow the Court to take a pass on 8 the better to act on these other cases which deal with marraige Equality nationwide?

    Posted by: David Ehrenstein | Feb 9, 2012 11:15:16 AM

  8. Bill S, why would they take a case that establishes that popular opinion cannot take away rights previously granted when they have little choice but to accept the Massachusetts case that breaks down one of the most evil components of DOMA, lack of federal recognition of perfectly legal marriages?

    Posted by: Dave | Feb 9, 2012 11:21:22 AM

  9. @Ari - what about Judge Smith's dissent? Smith seems to be saying that a rational reason need not be factual, only that the people meant well. In this case, the record clearly illustrates the reasons used were invalid, and not only that, but it was quite obvious the proponents just didn't like gay people. Of course, I am biased against Prop 8, but come on... this seemed like he was really reaching to come up with a justification for his dissent and it fell flat. Thoughts?

    Posted by: MikeH | Feb 9, 2012 11:24:44 AM

  10. @jim: yes, if it comes to the point where washington grants marriage rights then takes them away, this decision would have direct impact, especially since washington is also in the ninth circuit. of course, that is, unless the supreme court reverses the 9th. if SCOTUS does not reverse then no state in the 9th circuit could first-grant-then-deny marriage rights to gays.

    Posted by: Ari Ezra Waldman | Feb 9, 2012 11:28:47 AM

  11. @mark: will do! definitely a future post. just too much for all in one post. :)

    Posted by: Ari Ezra Waldman | Feb 9, 2012 11:29:16 AM

  12. @mikeh: definitely another post. but, my basic point will be that judge smith is misconstruing the rational basis standard as a mere good faith standard. just as long as the people acted in good faith and may have believed bad science even though the science was bad, its ok. but that runs afoul of romer and others.

    Posted by: Ari Ezra Waldman | Feb 9, 2012 11:31:01 AM

  13. Ari, once again, thank you for your thorough and detailed analysis, as usual!

    And, Bill S....your succinct commentary was most welcome and appreciated; and it got those legal brain cells of mine tingling!

    Thank you guys!

    Posted by: Brains | Feb 9, 2012 11:40:28 AM

  14. As always, thanks for the in depth analysis. You need your own blog!

    All of this discussion, however, assumes that the next step would be the supreme court and that kennedy will be the swing vote.

    What if the next step is the thing you call en banc, review by the 9th?

    If the next step is an en banc review by the full 9th, what are the political alliances of that full body and how are they likely to rule?

    Posted by: dms | Feb 9, 2012 12:02:08 PM

  15. @ARI :

    Once again it is so refreshing to read you, Ari.......
    Now I shall have to do so a second time......and this time I will go more slowly !!!!

    Posted by: JackFknTwist | Feb 9, 2012 12:05:00 PM

  16. Ari, I see this post as the best piece you've written that I've read.

    Thank you!!

    I look forward to more. It's nice to read analysis like this from someone whose bias I don't have to suspect. And I like how you discuss the political dimensions--because you have a grasp on them, despite your earlier protests otherwise.

    Posted by: just_a_guy | Feb 9, 2012 12:41:42 PM

  17. I really appreciate these posts, they help me to understand a very complex situation. Thanks so much!

    Posted by: Abel | Feb 9, 2012 12:45:44 PM

  18. I think it quite possible for the Supremes to hear the appeal of Perry as a companion case to one or more DOMA cases. The hearings and arguments could be consolidated for consideration, leading to a greater chances for consistently rational jurisprudence. Separate decisions would be rendered as the issues would not be identical. The overriding societal issues in these matters touch on the question of the government's interest in requiring one and not more than one penis per marriage license. Once the Supremes decide Perry and the DOMA appeals the Circuits would have a clearer template for deciding what may be periferal issues.

    Washington's law may well not align with Ninth Cir Perry analysis, as in Washington the legislative action would not go into effect but rather would be prevented from becoming effective by the referrendum, should that action be adopted by the voters. So Washington would, in that case, present a different issue. But really, how silly would a contrary result in Washington be? I have faith that our Constitution and judiciary are stronger, and more intellectually honest, than the temptation to take the easy way out.

    Posted by: Eyes For Guys | Feb 9, 2012 12:52:35 PM

  19. i'm a little bit confused as to how the dissenting judge's "opinion" is given weight....

    ...we've seen, in the Olympics of all things, judging being too subjective and new rule changes forcing judges to have to explain, with specifics, why they give the marks they give - as dictated by a set of standards.

    why doesn't this seem to apply in a court of law?

    the dissenting judge seems to be sayign "i can't back it up or explain it with rational logic, it's just how i feel. so there"


    Posted by: Little Kiwi | Feb 9, 2012 12:57:22 PM

  20. Although the case only applies to California (a major victory in itself), it will influence courts in states in which there are efforts to "roll back" the legalization of same sex marriage, such as in new Hampshire now.

    Posted by: Drake | Feb 9, 2012 1:03:07 PM

  21. @Dave: "Bill S, why would they take a case that establishes that popular opinion cannot take away rights previously granted when they have little choice but to accept the Massachusetts case that breaks down one of the most evil components of DOMA, lack of federal recognition of perfectly legal marriages?"

    I don't know what you're asking here. I don't believe the Supreme Court will take the Prop 8 case. I do believe they will take the DOMA cases. The DOMA cases implicate federal law, and as there are marriage equality states (+DC) in several different circuits, this will need to be settled at the top level.

    I think the only reasons the Supreme Court would actually hear the Prop 8 case would be:

    1. The ruling is overturned en banc.
    2. The Supreme Court wishes to use this case as a means of applying a higher standard of scrutiny.
    3. The Supreme Court wishes to remand the case back to the 9th Circuit to rule on the merits of Judge Walker's original finding, that one has a fundamental right to marry irrespective of sex, no matter what.

    I don't see any of these as likely.

    Posted by: Bill S. | Feb 9, 2012 1:03:21 PM

  22. I also do believe that an en banc appeal will be accepted.

    Posted by: Bill S. | Feb 9, 2012 1:03:56 PM

  23. You point out Mapp, Gideon, and Brown, which were all the actions of the Warren Court. Since that time, SCOTUS has become far more conservative and generally more minimalist (except in sweeping conservative decisions like Citizens United).

    I agree and disagree with you. More here:

    Posted by: Sol Muser | Feb 9, 2012 1:15:07 PM

  24. It reads, to me, as if it's written so that the SCOTUS can simply deny review, thereby leaving the last ruling in tact. A way to stop the train before it gets out of control, so to speak.

    Posted by: Mike Hipp | Feb 9, 2012 1:25:30 PM

  25. Let's hope the Supreme Court does not accept this case for review -- or rather, that it denies the appeal for lack of a substantial federal question (it will be an 'appeal', probably not a petition for certiorari). Here's why:

    1) There are assumptions that IF the Supreme Court takes review, and IF it reverses the 9th Circuit, then it would send the case back to the 9th Circuit for a ruling on whether Prop 8 is constitutional under a 'stricter' standard of review (that is, is Prop 8 constitutional under the 'compelling interest' test instead of 'rational basis' test, or is Prop 8 constitutional under the tests associated with denials of "fundamental rights"). But it is also possible that we could get a decision from the Supreme Court that sets back gay rights by 10 or 20 years: instead of sending the case back to the 9th Circuit, the Supreme Court could rule that there IS a 'rational basis' to deny marriage to same-sex couples, and that 'marriage' is NOT a fundamental right that same-sex couples ever had or now have, and that there IS a 'compelling interest' in denying same-sex couples the right to marry (for example, 'preservation of the traditional family' might be viewed by the Supreme Court as a 'compelling interest' etc). For those who say this cannot happen, just remember: there are 4 very conservative Justices (Scalia, Thomas, Alito and Roberts), and one conservative Justice (Kennedy) -- and no one should assume these 5 Justices would not issue a disastrous opinion like that just mentioned.

    2) If you don't believe the disastrous result of Supreme Court review mentioned in #1 above is possible, consider what ex-Justice O'Connor (who was 'more liberal' than Justice Kennedy) said in the Lawrence case: "That this [Texas] law as applied to private, consensual conduct is unconstitutional under the Equal Protection Clause does not mean that other laws distinguishing between heterosexuals and homosexuals would similarly fail under rational basis review. Texas cannot assert any legitimate state interest here, such as national security or preserving the traditional institution of marriage. Unlike the moral disapproval of same-sex relations-the asserted state interest in this case -- other reasons exist to promote the institution of marriage beyond mere moral disapproval of an excluded group." CAN'T YOU SEE JUSTICE KENNEDY TAKING THIS 'BALL' and "RUNNING WITH IT"? Such a Supreme Court decision would be disastrous for the next generation of gay people.

    3) The 9th Circuit decision would NOT -- unless it's "EXTENDED" beyond its own facts -- have any application to what happened in Oregon or what may happen in Washington State. In Oregon, the Oregon Supreme Court ruled that the marriage licenses issued to same-sex couples were invalid from the very beginning, and that the counties had NO authority to issue those licenses; so the Oregon Supreme Court said none of the marriages that took place were EVER legal, and so the vote to amend the Oregon constitution did not take something away from anyone (in the view of the court). This is very different from the Prop 8 case where the California Supreme Court said that it was legal and proper to issue the licenses, and that none of the licenses were ever ruled invalid, and it also said that the California constitution (before it was amended by Prop 8) did give same-sex couples the right to marry which was 'taken away' by the voters who enacted Prop 8 -- VERY DIFFERENT from what happened in Oregon. Also, as to Washington State, when the Governor signs the same-sex marriage bill, it will NOT become law and allow anyone to marry if the bill gets petitioned to referendum. So, again, the voters in Washington State (if they vote to 'undo' the new law) will not be 'taking away' anything that ever went into effect. HOWEVER, despite the differences between the FACTS in the Prop 8 case and what happened/happens in Oregon and Washington State, the principles behind the Prop 8 decision could (and probably should) lead to the same result for Oregon and Washington State. But under the most narrow view of the 9th Circuit decision, it does not require the same result for those two other states -- so we will have to see what happens in Washington State.

    4) Interestingly, the 9th Circuit rationale WOULD apply to other states where same-sex marriage has been in effect: New Hampshire, Vermont, Massachusetts, Connecticut, and Iowa, and also to Washington DC. Taking away marriage rights in those places might be unconstitutional under the 9th Circuit ruling -- unless the Supreme Court reverses the 9th Circuit and follows ex-Justice O'Connor's comments about state rights to deny same-sex marriage.

    5) As a practical matter, as long as the 9th Circuit decision remains in effect, and even if it doesn't become legal precedent anywhere else, the fact is that California will join the other states where same-sex marriage will be legal. At some point soon, with so many states (NY, CA, MA, CT, etc) allowing same-sex marriage, the practical problems of dealing with same-sex married couples who move all over the US, and the progressive views of younger voters, will require the political system (not just the courts) to recognize these marriages.

    Posted by: MiddleoftheRoader | Feb 9, 2012 1:45:53 PM

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