Proposition 8 Ruling Analysis: The Dissent

Judge Smith spends most of his dissent relying on cases from either before or during the Bowers v. Hardwick (1986) era: Baker v. Nelson (1971), High Tech Gays v. Defense Industry Security Clearance Office (1990), and Heller v. Doe (1993). Even if these cases are still technically good law, they all came before Romer v. Evans (1996) and Lawrence v. Texas (2003) changed the status of gay persons under the Constitution from criminals to protected class. At a minimum, then, we should approach these cases with a healthy dose of skepticism.

The dissent does not, opting instead to make two doctrinal errors:

The dissent's reliance on Baker v. Nelson ignores doctrinal developments in privacy and liberty since the 1970s.

In Baker v. Nelson, the Minnesota Supreme Court upheld the State's denial of marriage rights to gays, arguing that banning gays from the institution of marriage did not offend the Fourteenth Amendment's Equal Protection Clause. The plaintiffs appealed to the U.S. Supreme Court, arguing the same Due Process and Equal Protection claims that plaintiffs offered in Perry. But, the Court summarily dismissed Baker for lack of a federal question, which, according to Judge Smith, means that that the Perry plaintiffs' identical equal protection and due process claims are foreclosed. That is, if the Supreme Court thought the Baker plaintiffs raised no legitimate federal question, the same must be true for the same questions raised in Perry.

That conclusion disregards the doctrinal developments since Baker, including almost every pro-equality decision protection gay Americans, not to mention the personal and intimate liberty interests articled in Roe v. Wade (1974), Planned Parenthood v. Casey (1992), and Lawrence, to name just a few. Judge Smith acknowledges this reality with a bit of snark, quoting a bankruptcy court case, which is near the bottom of the federal precedent totem pole. But, it doesn't take a bankruptcy judge's decision to see that intimacy rights are different today than they were in 1971.

The dissent's exceedingly low rational basis test is inconsistent with Supreme Court precedent.

In response to a majority opinion in which Judges Reinhardt and Hawkins found Prop 8 unconstitutional because it took away a pre-existing right to marry from gay Californians and, in doing so, irrationally tried to advance even legitimate state interests, Judge Smith quibbled with the form of the majority’s rational basis test. But, he did more than quibble: he took a hatchet to it.

Judge Smith relied on Heller v. Doe to conclude that the Proponents of Prop 8 needed only "any reasonably conceivable state of facts" to "provide a rational basis" for discrimination against gays, and that their basis for Prop 8 could be "rational speculation" about those facts. Heller involved a challenge to a Kentucky law for the involuntary commitment of the mentally retarded, but was decided at a time (1993) where only the most permissive form of rational basis was used for every classification except those based on race, religion, national origin, and gender. Resurrecting that test today requires us to assume that our standards of review have not changed in 20 years.

California.Prop8_.Marriage.Equality1Of course, though, they have changed. After Romer and Lawrence, the Eleventh Circuit tried to apply an exceedingly low rational basis standard to a Florida law that banned gay people from adopting, and today, most scholars see that effort as a form of judicial nullification. In Lofton v. Secretary of the Department of Children and Family Services (2004), the court majority restricted Lawrence to its facts and found that a state could conclude that straight people were better parents even if the state was speculating on the basis of dubious science. Lofton's permissive test has come under fire from scholars — Bill Eskridge called it "judicial nullification" because of its attempt to make Lawrence irrelevant — and from subsequent courts: even Cook v. Gates (2008), the First Circuit's decision that accepted the validity of "Don't Ask, Don't Tell" didn't rely on this pre-Lawrence test. Plus, since Lawrence, various federal and state courts, not to mention the Obama Administration, have rejected rational basis review for discrimination on the basis of sexual orientation. Times have changed, except in Judge Smith's dissent.

But, more importantly, if it were true that a "conceivable state of facts" could be based on "rational speculation" about dubious science, the precise situation envision by Romer, where the absence of any legitimate interest leads to the inference of animus, would be impossible. We could always speculate in good faith about this or that theory, or, to use Judge Smith's words, anyone "might … believe[]" that a ban on gay marriage "arguably" furthers responsible procreation or "may promote" optimal parenting. For that matter, I might believe that moving to Boston arguably furthers my goal of getting tenure at Harvard; I would be wrong, but I wouldn't be irrational: Harvard is next door to Boston, so hanging around the dean's office may give me a jump on applying for faculty openings. In this way, by making the animus inference impossible, Judge Smith's exceedingly permissive rational basis text runs afoul of the Supreme Court's decision in Romer.

The dissent also challenges the majority's view that encouraging opposite-sex households as "optimal" could not be a legitimate state interest because Prop 8 left California's liberal adoption and domestic partnership law in place and only stripped the word "marriage" from gay unions. That is, if the state allowed gays to adopt, to be foster children, and have all the rights of married couples, it could not legitimately be in the business of encouraging one-man-one-woman homes. This is one case where logic is on the majority's side, but Judge Smith is not wrong. When reviewing state laws, federal courts have long recognized that one legislative body can rely on a stated reason even after that reason has been rejected by another lawmaking body. However, that interpretation of the rational basis test comes from 1993, before Romer and Lawrence changed the way we use rational basis for sexual orientation discrimination.

That said, Judge Smith highlights the inherent illogic of the majority's "narrow" holding.

As we have discussed, the majority declared Prop 8 unconstitutional because it took away rights already granted to gay Californians without any rational basis. But, as part of his discussion of Romer, in which he argued that the constitutional amendment at issue in Romer was much broader and more harmful than Prop 8, Judge Smith noted that Romer did not hinge on the taking away of rights that were already there. Rather, the Supreme Court only stated that Colorado's Amendment 2, which banned all local and state anti-discrimination laws that protected gay people, took away someone's rights in order to show that it targeted only gay people. In other words, the problem with Amendment 2 was not that it took away rights alone, but that it created a unique burden for one minority group.

This suggests that the Ninth Circuit's narrow holding may be based on shaky ground. Romer stands for the proposition that a state cannot pick out one minority for a special burden based on pure animus, not that a state cannot take away rights from one minority group based on pure animus. If the former is true, Prop 8 — not to mention other bans on same-sex marriage — is unconstitutional under the broad Due Process and Equal Protection grounds.

Notwithstanding this final intriguing point, Judge Smith used his dissent to resurrect old theories long discarded by doctrinal developments in federal law. He relies on antiquated precedent, tipping his hat that the forces aligned against gay marriage have no legs to stand on.

Prop 8 Ruling Analysis: Why The Narrow Holding? [tr]


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.


  1. Randy says

    Regarding Judge Smith’s bias as a Mormon:

    As a lawyer, I know that every judge must act without bias or partiality. And we have to assume that unless there are circumstances that show there is unfair bias.

    Having said that, every judge comes to a case with his own perspectives, and we all understand that some judges are liberal, some are conservative, and some you just don’t know where the hell they are .

    Of course, we argue that Judge Walker, even though gay, would be unbiased on this issue. But we also expected him to rule the way he did, not only because it is the fair, just and legal way to rule, but because we hope that his gay identity will inform his opinion.

    Is that bias? Some say yes, others say no.

    Now, with regards to Smith, he is a mormon, and mormons are stridently anti-gay. I know, because I have relatives who are mormon, and we know that they are pumping millions in to anti-gay initiatives. And their signature issue was funding Prop 8.

    Just because he’s a mormon, I wouldn’t ascribe bias to him at all, any more than a catholic judge would rule against contraception just because he is a catholic. But being mormon is NOT like being a catholic — not at all.

    If Smith had ruled with the majority, he would have faced personal issues at his church. He would be questioned and perhaps even shunned. This is a touchy issue with mormons, having given millions to pass Prop 8, and then one of their own betrays them and the laws of God? He might even be excommunicated, which is the worst thing that can happen to a mormon, and a ruling with the majority would have provided ample grounds for that.

    I agree his dissent is pretty weak. And so one way a reasonable could read this is to conclude that Smith actually wanted to vote with the majority, but knew he could not. So he came up with some weak reasons to vote against them. It is a half-hearted attempt to justify a no vote.

    I may be quite wrong, of course, but I wouldn’t dismiss the allegations of mormon bias too quickly. Mormonism isn’t just a religion — your entire life is wrapped up with church activities, positions to hold with in the church, socializing with other mormons, help groups within the church, and living every aspect of your life by refraining from caffeine, alcohol and nicotine, among other so-called vices.

    Some people label mormonism as a cult, and although I wouldn’t go that far, it certainly has aspects of a cult, and a person could treat it as though it were. To be excommunicated from such a tightly wrapped community can be traumatic.

    To Smith, is it worth the possibility of permanent shunning from all his relatives and friends, plus an eternity in hell, for a vote that was going in favor of gays anyway? It’s not a question that we should assume isn’t in the room.

  2. Joel says

    @allbeefpatty: If you want people to take us seriously as thinking gay men you should have continued to read the rest of the sentence. We will win this argument through appeals to reason and the better of people’s nature rather than to stereotypes which have hurt us so badly as gay men.

    Great job Ari. As a fellow attorney, I appreciate seeing your analysis to add to the pool.

  3. K in VA says

    Re: Nelson.

    I can’t for the life of me understand why our opponents continue to roll out Nelson (aside from the fact it’s damned near all they have).

    Never mind how much Romer and Lawrence have turned marriage equality into a Federal question, I posit that Congress also negated Nelson when it passed DOMA.

  4. Joel says


    Couldn’t agree with you more… Judge Smith’s dissent is a mess.

    I think the most “reason” is found in Judge Walker’s opinion, though the 9th Circuit majority did a reasonably good job. My point was that IMHO it’s best to focus on the strong legal arguments rather than on the messengers… particularly when we can show that Judge Smith’s message, Mormon or not, is poorly thought out and weak.

  5. AllBeefPatty says

    @joel. Of course it’s poorly thought out and weak, that’s the definition of religion. A swirling cesspool of hypocrisy and interpretation. That’s why it is such a $hit magnet for the world’s carnival barkers.

    But there he sits on a Federal bench and it’s not due to intellect and reason.

    Remember, Clarence Thomas was appointed to his position because he was black and conservative not due to his legal prowess.

    Once again, reason is out of the question. The benefit of doubt does not apply in this case.

  6. mini says


    Thank you for this thoughtful series.

    These days, I’m eager for ANY Prop 8 news. Being able to reliably find a reasonable voice dissecting my current “information obsession” on Towleroad is great.

    Keep it up!

  7. Demian says

    Great piece, as always, thanks.

    Is there any valid analogy between converting the rational basis test into a good faith inquiry for 14th Amendment purposes, and converting the probably cause / reasonable suspicion tests into a good faith inquiry for 4th Amendment purposes? In both lines of reasoning, questionable governmental actions get papered over and the constitutional protections lose their force.

  8. MiddleoftheRoader says

    It would be useful to hear you address Judge Smith’s reference to Justice O’Connor’s comments in Lawrence regarding a rational basis for limiting marriage to opposite sex couples.

    Also, although Heller v Doe is a pre-Romer case, its test for a rational basis — “any reasonably conceivable state of facts” — has not been expressly overturned by any other Supreme Court decision. Certainly, “mental retardation” (at issue in Heller) is no less an immutable characteristic (or probably a ‘protectable class’) for most people than sexual orientation. So what post-Romer SUPREME COURT decision EXPLICITLY rejects the test used in Heller?

    Finally, there is some logic to the Ninth Circuit majority view that a REPEAL of laws that once granted certain rights is qualitatively different from a refusal to change laws that have (always) historically not included certain groups of people. Whether REPEAL increases the quantum of evidence or the legal standard of what is a ‘rational basis’ is unclear, but to ‘take away’ rights that relate to a personal liberty like maintaining an intimate relationship (see the language in Lawrence) is a bit different that taking away other types of rights that once existed (for example, if bars were previously permitted to remain open until 4AM, but a states passes a law to require them to close at 2AM — it would be hard to argue that ‘taking away’ the right to stay open for another 2 hours was irrational or interfered with some important personal liberty).

  9. Brains says


    I know you are trying to be a good scholar of jurisprudence, but in this case it is a leap across the Grand Canyon to try and argue for Smith.

    His bias is self evident in his ridiculous legal logic….. Grasping for anything like a cheap whore!

    The truth is plain to see: he simply could not return to the Salt Lake City without a dissenting vote.

    His career will be forever marked as useless!

    The two compromised judges on the Supreme Court of the United States, should take note!

  10. Chuck Mielke says

    When SCOTUS actually strikes down prohibitions to same-sex marriage under the 14th amendment, and I feel pretty sure they will, we should probably expect a strong blow-back from those pseudo-conservative activists. The Court will be seen as full of “activist judges” even if it full of conservative justices. Our opponents in this case, are incapable of seeing political actions as anything other than wish-fulfillment. They already believe that gays control everything, including the majority of the nation’s wealth. They need to see that their negative stereotypes of us are delusions by which they are controlled by others.

  11. Keith says

    @Middleoftheroader. . .what did Justice O’Connor state in the Lawrence v. Texas decision to which you are referring? I’m not understanding its relevance to rational basis. Can you respond?

  12. Pender says

    “to suggest that a judge cannot be impartial because he is a Mormon disrespects him and smacks of hypocrisy when we argue that being gay did not unduly bias Judge Walker.”

    Um, you can’t be excommunicated from gayness for believing that gay people don’t have a constitutional right to marry. In fact, GOProud serves as continuing proof that you can believe in the most heterodox things, from the mainstream gay perspective, while remaining gay.

    I’m curious if there’s even a single example of a Mormon of comparable prominence to a Ninth Circuit Court of Appeals judge who has publicly stated that he believes in same-sex marriage.

    And on principle, I don’t see why membership in the LDS church is less probative of your stance on same-sex marriage than membership in the Sierra Club is probative of your stance on, say, global warming. Is it really bigoted or hypocritical to assume that a dues-paying Sierra Club member believes in global warming? Why do churches deserve a different response to the straightforward bayesian probability calculation?

  13. MiddleoftheRoader says

    To Keith:

    Ex-Justice O’Connor’s concurrence in Lawrence said the following (and it hurts the argument to allow same-sex marriage):

    “That this 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.
    A law branding one class of persons as criminal SOLELY based on the State’s MORAL DISAPPROVAL of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection Clause, under any standard of review.” (my caps)

    My concern is that everyone things Justice Kennedy will vote to overturn Prop 8, but that means he would have to disagree with ex-Justice O’Connor’s statement that there are “reasons” besides “moral disapproval” that apply when the “institution of marriage” (rather than criminal prosecution) is involved. Maybe ex-Justice Kennedy will surprise us, and even Justice O’Connor may have changed her views according to speculative news reports since she retired.

  14. Rrhain says


    True about O’Connor, but two things:

    First, O’Connor was writing separately from the rest of the majority opinion.

    And then you have Scalia’s dissent in Lawrence:

    “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”

    So Scalia thinks Lawrence v. Texas, in direct opposition to O’Connor, requires equality in marriage.

    Of course, he’ll figure some way to weasel out of his own declaration.

  15. MiddleoftheRoader says

    To RR Hain: You are so right about Scalia. He will find a way to distinguish what he said in Lawrence.
    As for O’Connor’s concurrence, my concern is that Kennedy would have an ‘easy’ way out of striking down Prop 8 by using the line of reasoning that O’Connor mentioned in her concurrence. And since O’Connor was generally well-respected, it could leave Kennedy feeling that he was in good company.
    But there are many other twists and turns this case can take.

  16. Randy says

    “…to suggest that a judge cannot be impartial because he is a Mormon disrespects him and smacks of hypocrisy…

    I don’t worry about disrespecting someone who has earned that disrespect.

    As for hypocrisy, you’re just wrong.

    Mormonism, like Christianity and Islam is a belief system that one chooses. It sets itself higher than the state (and so the courts). Anyone openly admitting these beliefs is plainly telling you they are biased. It is only the desire not to give offence that prevents us from acknowledging this clear statement.

    Being gay is not a choice, and is not even a belief system. Just ask GOProud and GetEqual to agree on something. Anything.

    Last, the pretense that justices are impartial is a load of hooey. The reason we can identify moderate and conservative judges on the US Supreme Court is enitrely because at least some, possibly all, are biased.

    It’s better to admit that than to pretend it doesn’t exist, for decorum.

  17. Randy says

    I should also point out that in Part IV of the dissent, Smith says the amendment defines “marriage as the union of one man and one woman”.

    But Prop 8 doesn’t say that. It says “a man and a woman”. I think that’s an important difference from “one man and one woman”.

  18. Urmensch says

    As a European I am unfamiliar with U.S. law, but I found the summary great.

    One thing that struck me was the rational basis being interpreted as any argument made in good faith, or honest reliance on anything, even if based on bad science.
    My understanding of rational has always been ‘in proportion to the evidence’.
    By this definition good faith just isn’t enough as it doesn’t allow for that good faith being based on fear that is mainly irrational. Any speculation of how changes may effect society in the future that are based mainly on fears, especially fears based in religion must also have a strong basis in evidence, the very best science, before it can pass the test for rational speculation.
    Just because fear is based on religious ideas doesn’t automatically make it wrong, but it does need to be grounded in empirical evidence.

    A great deal of the psychological underpinning of conservatism has increasingly been shown scientifically to be fear of change, of novelty. It is often fear for its own sake that gets rationalised.

    Sticking with what you know and not allowing for the possibility that change can be for the good is not a basis for a definition of rational speculation.

  19. wimsy says

    “to suggest that a judge cannot be impartial because he is a Mormon disrespects him and smacks of hypocrisy…”

    True…but to suggest that a judge was not impartial because he had to reach deeply into his bag of tricks to dig out outmoded arguments, shaky logic, and absurd conclusions smacks of thoughtful dismissal of this Republican hack.

  20. says

    to all the commenters: thank you for your thoughts. just a quick note: my disclaimer is not meant to suggest a view that a judges religion or background has NO effect on how he sees the world or decides cases. we all know it does, on both sides. Recall Justice Sotomayors comment that she comes to decisions with her history, but follows the law. i was merely trying to say that those influences are best left to psychologists or sociologists to discuss. my role here is to discuss the law and stimulate legal discussions; as such, i wont dive into the other issues.

  21. Sean Bohac says

    I feel like I learned something about legal precedent from your article, BUT that is not what the prop8 trial will come down to at SCOTUS. The Smith dissenting opinion proves that in some cases, judges can make politically motivated decisions. The prop8 case is expected to have this outcome – everyone, I mean everyone, expects 4 supremes to affirm and 4 to reject the Walker opinion. Everyone expects that 1 judge may vote based on a catholic bias, or on rule of law and appropriate precedence.

    I think it is a “supreme” mistake to expect justice on this very political issue from a SCOTUS populated as it is at this time. If anything, this court shows a penchant for ignoring rule of law in favor of idealogy (if I understand Citizens United or Bush v Gore). Nice article, but if a circuit judge can use this argument and only pocketprotector-clad folks are upset, then 5 supremes can do the same with no repercussions.

  22. StraightGrandmother says

    Well what happened to Lofton v. Secretary of the Department of Children and Family Services (2004)after the 11th Circuit used an exceedingly low threshold. Did the Supreme Court overturn it?


    even Cook v. Gates (2008), the First Circuit’s decision that accepted the validity of “Don’t Ask, Don’t Tell”
    did not rely on a low rational basis. So then what happened to that Court case?

    You gave us Court cases but you didn’t finish the stories about them.

  23. StraightGrandmother says

    In other words, the problem with (Colorado’s) Amendment 2 was not that it took away rights alone, but that it created a unique burden for one minority group.
    True about Romer = a state cannot pick out one minority for a special burden based on pure animus

    Not True about Romer = a state cannot take away rights from one minority group based on pure animus.
    I am having a hard time with the above sentences from Ari’s article. Can someone please break this down for me. The two sentences about Romer seem the same to me.

  24. says

    @straightgrandmother: was Amendment 2 a problem because (a) a right was taken away or (b) it burdened one minority group by taking away a right ONLY from them. option (a) applies to whenever a right is taken away; option (b) applies to all burdens — taking away rights, imposing onerous burdens — imposed on a group simply bc of who that group is. im arguing that romer is NOT (a), its (b), which would challenge the majoritys underlying rationale. does that make sense? i hope that clears it up. its a complex, subtle, yet important difference.


  25. StraightGrandmother says

    Thanks Ari, yes that helped. Also I read the Wiki on Romer which was pretty good.
    Rejecting the state’s argument that Amendment 2 merely blocked gay people from receiving “special rights”, Kennedy wrote:

    To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.

    Kennedy argued that protection offered by antidiscrimination laws was not a “special right” because they protected fundamental rights already enjoyed by all other citizens

    …END SNIP…
    Boy Scalia sure was unhappy with the majority. He sure does not like gays at ALL.

    When I have time I will go read the whole ruling but based on the Wiki I agree with you that Romer is (b)
    I am still hoping you will tell the rest of the story with what happened in the Lofton case, did the Supreme Court overturn?

  26. Bob says

    If we anyone is going to suggest that Smith’s opinion is prima facie tainted because of his religious affiliation, we are left with the counter that Judge Walker was bound to rule as he did because he’s gay. This is both unseemly and pointless. Putting aside the unarguable fact that even the most conscientious judge will have a point of view that is shaped by his or her background, and that (regardless how we may feel about a particular judge’s ability to transcend that point of view where the facts and the law surrounding a case might create some sort of conflict) there is absolutely nothing to be gained from taking this tack. Judges are presumptively held to be free of bias based upon background. This is the only thing that makes the legal system workable at all and that position is as likely to support a ruling in our favor as it is to oppose it so we should be careful about questioning it.

    Furthermore (and believe me I have nothing personal at stake here, not being Mormon myself nor really knowing anyone who is), support for Prop 8 was far from universal even among Mormons. The wife of former 49ers quarterback Steve Young, who, like her husband, is Mormon, very publicly opposed Prop 8. Clearly whatever fears one might be tempted to ascribe to Smith regarding his future treatment at the hands of his co-religionists, making an assumption that that might have played a part either in the opinion he wrote or in how weak it was, is nothing more than speculation. And after all, it’s not as though Mormons, Catholics, Southern Baptists, or any other religious group have the inside track on opposition to marriage equality. One can even be an atheist and still be a bigot. Take the example of Australia’s prime minister who is very pointedly an atheist and yet is at the same time unalterably opposed to marriage equality in her nation.

    I’d much prefer to assume that Smith crafted his argument as he did because he had no interest in supporting the majority opinion out of…well, I don’t even want to speculate on his motivation…and yet the cases he cited in support of his minority opinion were the best he could come up with.

  27. NiceRed says

    Ari, I really appreciate your continued very effort to communicate the complexities of the legal issues in a manner that us non-lawyer types can actually understand. Thank you very much.

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