The court agreed with anti-gay marriage forces, concluding that "[t]he legislature could rationally speculate that by reserving the name 'marriage' to opposite-sex couples, Hawaii's marriage laws provide special promotion and encouragement to enter into those relationships advancing societal interests while the civil unions laws protects the individual interests of same-sex couples."
There are three problems in that one sentence.
First, the notion that "rational speculation" is sufficient for a legislature to connect some state interest to a given law that discriminates is outdated, at best, and ignorant of prevailing constitutional law, at worst. Ever since Romer v. Evans and Lawrence v. Texas, and as recently recognized again by the First Circuit in one of the DOMA cases, state actions that discriminate on the basis of sexual orientation merit at least a rational basis review, but with more exacting scrutiny than for simple economic legislation. This distinction between the lowest form of rational basis and "rational basis plus" was the primary difference between the majority's opinion in Perry and Judge Randy Smith's dissent.
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.
As I argued after the Ninth Circuit handed down its decision in Perry:
Of 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 heterosexuals 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 ran afoul of the Supreme Court's decision in Romer.
Judge Kay's decision faces the same problems. He accepted that the legislature could merely speculate about a ridiculous connection between using the word "marriage" and encouraging heterosexuals to marry and have children via vaginal intercourse. To Judge Kay, that highly speculative connection need be nothing more than possible or conceivable. Of course, as numerous courts have stated, simply withholding the word "marriage" from committed same-sex couples, especially while granting them all the rights and benefits of marriage (including adoption and family) cannot encourage opposite-sex couples to marry more often, and it certainly cannot encourage natural procreation (even assuming that is something the state should be in the business of encouraging). That is the second problem: there is no rational connection between marriage discrimination and encouraging natural procreation.
The third problem is that Judge Kay implies that there are no social benefits that can derive from state support, recognition, and encouragement of same-sex couples. The willful blindness to the social good of gay marriage — its stabilizing, assimilatory, and selfless benefits — is typical not only of conservative jurists, but of many liberals on the pro-gay side. Many gay rights advocates prefer to think of marriage in terms of equality and rights, the benefits that inure to an individual of another sexual orientation when the state starts treating all people equally. That is hardly a sufficient case for marriage recognition. Giving gays and lesbians the honor and dignity of the word "marriage" provides social benefits exogenous to the marriage itself, as Judge Reinhardt recognized in his Perry majority opinion.
Judge Kay, then, is running afoul of the letter, substance, and implications of his superior court, and trying to return us to a pre-Romer and pre-Lawrence legal framework. The Ninth Circuit — which may hear this case on appeal — should not let that stand.
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Ari Ezra Waldman teaches at Brooklyn Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. His research focuses on technology, privacy, speech, and gay rights. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.
