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

Proposition 8 Ruling Analysis: The Dissent


The prescient dissent has a storied place in American constitutional history thanks to the preeminence of once-dissenting Supreme Court justices like Holmes, Harlan, and Brandeis. Their progressive dissents foresaw a future where the poor were treated with dignity; where equal protection included all races and religions regardless of status, wealth, or national origin; and where liberty meant more than a corporation’s freedom to run a sweat shop. Their views became majority opinions not only because social forces finally caught up with their genius, but also because they were right on the law from the start.

RsmithhandNeither can be said for Judge Smith’s dissent in the Ninth Circuit’s recent decision in Perry v. Brown. By tilting away from the arc of social progress and doing so on shaky legal ground, Judge Smith has earned his place in the dustbin of forgotten history. 

But before we relegate Judge Smith to a tiny footnote, today I will argue that Judge Smith relied on outdated law and made a logical and legal error when he converted an already broadly permissive rational basis test, in which state action that discriminates has to be rationally related to some legitimate government interest, into a standard of good faith, where “rational” can mean honest reliance on anything.

First, a disclaimer: Many Towleroad readers and commentators elsewhere have noted that Judge Smith is a Mormon appointed by George W. Bush, suggesting that his political conservatism and his religious affiliation with a pro-Prop 8 group made his dissent a foregone conclusion. I will not join that speculation, which is really all it is. No one doubts that our personal histories impact the way we see the world, but 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.


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.

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  1. 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.

    Posted by: Urmensch | Feb 15, 2012 5:26:48 AM

  2. "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.

    Posted by: wimsy | Feb 15, 2012 10:13:49 AM

  3. 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.

    Posted by: Ari Ezra Waldman | Feb 15, 2012 10:48:17 AM

  4. 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.

    Posted by: Sean Bohac | Feb 15, 2012 4:57:46 PM

  5. Small correction
    "to be foster children"
    should be-
    "to be foster parents"

    Posted by: StraightGrandmother | Feb 15, 2012 6:34:42 PM

  6. 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.

    Posted by: StraightGrandmother | Feb 15, 2012 6:51:09 PM

  7. 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.

    Posted by: StraightGrandmother | Feb 15, 2012 7:01:59 PM

  8. @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.


    Posted by: Ari Ezra Waldman | Feb 15, 2012 7:48:24 PM

  9. 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?

    Posted by: StraightGrandmother | Feb 15, 2012 8:52:27 PM

  10. 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.

    Posted by: Bob | Feb 15, 2012 9:51:02 PM

  11. 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.

    Posted by: NiceRed | Feb 16, 2012 1:11:05 AM

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