Same-sex marriage advocates rejoiced today as the U.S. Court of Appeals for the Ninth Circuit upheld U.S. District Court Judge Vaughn Walker's 2010 decision that Proposition 8, the 2008 California ballot initiative banning gay marriage, is unconstitutional.
The decision is almost certainly destined for appeal and a likely ruling before the U.S. Supreme Court. In the meantime, today's ruling was not an unalloyed victory for gay-rights advocates: One judge on the three-judge panel that upheld Walker's decision authored a 39-page decision dissenting from the majority.
The dissent by Judge N. Randy Smith could provide some insight into the arguments in favor of Prop. 8's constitutionality that the Supreme Court might seriously consider. UC Hastings College of the Law professor Evan Lee says there were three major issues on which Smith, a conservative, disagreed with the famously liberal Judge Stephen Reinhardt, who authored the majority opinion:
1. The relevance of Romer v. Evans. In a 1996 decision, the U.S. Supreme Court ruled 6-3 that Colorado could not amend its state constitution to stop towns and cities from recognizing gays and lesbians as a protected class. This case was cited as a precedent by the majority in ruling Prop. 8 unconstitutional, but Smith argues that the comparison is not an accurate one. Colorado's proposed amendment, he says, was more sweeping than Prop. 8. "Proposition 8 eliminates the right of access to the designation of marriage from same-sex couples, rather than working a far reaching change in their legal status," he wrote.
2. The appropriate standard for reviewing state laws. A portion of Smith's opinion is devoted to a fairly abstruse discussion of "rational basis review," or federal courts' established practices for judging whether laws violate the equal-protection clause of the Fourteenth Amendment. Smith argues that federal courts, according to their accepted standards, should be reluctant to overturn state laws such as Prop. 8. He writes, "I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests," and "Precedent evidences extreme judicial restraint in applying rational basis review to equal protection cases."
3. The plausibility of the "optimal parenting" argument. One of the main legal arguments of Prop. 8's proponents is that the gay-marriage ban serves a legitimate state interest by encouraging the best form of partnerships for child-rearing. Reinhardt, in his majority opinion, dismisses the notion that straight couples are inherently better parents than gay couples, or the related argument that straight couples would choose not to marry if marriage were also available to gay couples. However, "Smith is saying, 'I'm not so sure,'" according to Lee. Smith writes, "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."
As Lee notes, the meaning of "responsible procreation" is far from clear in this context. But based on his assumption that this optimal-parenting theory is "arguable" -- whether or not it is wrong -- Smith urges judicial restraint, asserting that the justices should refrain from striking down Prop. 8.
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