If you’ve read any of my posts on previous same-sex marriage decisions — going all the way back to the 2003 ruling of the Massachusetts Supreme Court — you know the basic legal landscape. All same-sex marriage decisions revolve around two questions: How fundamental a right is a same-sex couple’s right to marry? And how much reason does the state have to deny that right?
Most pro-SSM decisions emphasize the second question, claiming that bans on SSM are not rationally related to any legitimate government purpose. And so, implicitly, the court is saying that SSM bans come from the majority acting out its spite against an unpopular minority.
A federal appeals court took that course Tuesday in upholding a lower court’s decision to strike down California’s Proposition 8. By 2-1, the judges said that Prop 8 fails the rational-basis test, the lowest legal standard.
The ruling rips one-by-one through the rationales given for taking away same-sex couples’ right to marry and finds them without any support in fact or logic: Prop 8 can’t be about the state’s interest in providing the best setting for child-raising, because it doesn’t change any of California’s rules about child-raising. Plus
It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.
It can’t arise out of a general prudence in deciding the definition of marriage, because it locks in a definition without further study.
Such a permanent ban cannot be rationally related to an interest in proceeding with caution.
It can’t be about protecting religious institutions from anti-discrimination laws, because Prop 8 doesn’t change those laws.
To the extent that California’s anti-discrimination laws apply to various activities of religious organizations, their protections apply in the same way as before.
It can’t be justified by what children will be taught about homosexuality in public schools, because that also didn’t change, other than the usual way that instruction changes as the world changes.
To protest the teaching of these facts is little different from protesting their very existence. … The prospect of children learning about the laws of the State and society’s assessment of the legal rights of its members does not provide an independent reason for stripping members of a disfavored group of rights they presently enjoy.
With all proposed rationales dismissed, the remaining conclusion is:
Proposition 8 is a classification of gays and lesbians undertaken for its own sake. … Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships by taking away from them the official designation of “marriage” with its societally recognized status.
The opinion of the dissenting judge, N. R. Smith, is in some ways more damaging to Prop 8 than the court’s majority opinion, because it shows just how far you have to go to find some rational basis for the law. Atlantic’s Andrew Cohen summarizes:
Thus, as his language grew more specious and abstract, the “rational basis” test became the “rational relation to some legitimate end” test, which became the “reasonably conceivable state of facts that could provide a rational basis” test, which became the “have arguable assumptions underlying its plausible rationales” test.
This damning-with-faint-praise opinion leaves the impression that Prop 8’s rationales were not crappy enough to throw out, but just barely. Dahlia Lithwick calls Judge Smith’s dissent: “the death rattle of a movement that has no legal argument or empirical evidence.”
From here the case probably goes to the Supreme Court, where eight votes seem locked in. Justice Kennedy will make the decision.
In general, given the perspective of more than eight years, the comment that ended my analysis of the 2003 Massachusetts case is holding up pretty well:
Personally, I expect the same-sex marriage issue to follow the same course as interracial marriage. After a few years of Chicken-Little panic, the vast majority of Americans will recognize that the sky has not fallen, and that the new rights of homosexuals have come at the expense of no one.