By: Paul S. Marchand
Waiting for the Ninth Circuit to release its opinion in Perry v. Brown this morning, I felt a curious sense of preoccupation and adrenaline, a sense I recognized immediately. It’s the sense any lawyer feels at the end of a jury trial, waiting for the jury to come back with a verdict.
Of course, Courts of Appeals don’t come back with verdicts; they issue opinions. Still, when the Ninth Circuit announced yesterday that today would be The Day on which it would issue its opinion on the merits, that same “wait for the jury” sense of anticipation began to build.
In this sense, the result in Perry v. Brown, because anticipated, actually wound up being somewhat anticlimactic; the record on appeal from the Northern District of California was so overwhelmingly favorable to the case made by supporters of marriage equality that a contrary result would have been virtually inconceivable.
Nonetheless, today’s opinion on the merits frames the issue in a way many LGBT activists might not have expected. Writing for a two judge majority on the panel, Reinhardt, J., steered clear of issuing any kind of ringing declaration on the issue of marriage itself. Judge Reinhardt’s opinion is almost at pains to explain that the court takes no position on the issue of whether, as a matter of federal constitutional law, GLBT people enjoy “a fundamental right to marry.”
Instead, the majority opinion deals with questions of process.
Waiting for the Ninth Circuit to release its opinion in Perry v. Brown this morning, I felt a curious sense of preoccupation and adrenaline, a sense I recognized immediately. It’s the sense any lawyer feels at the end of a jury trial, waiting for the jury to come back with a verdict.
Of course, Courts of Appeals don’t come back with verdicts; they issue opinions. Still, when the Ninth Circuit announced yesterday that today would be The Day on which it would issue its opinion on the merits, that same “wait for the jury” sense of anticipation began to build.
In this sense, the result in Perry v. Brown, because anticipated, actually wound up being somewhat anticlimactic; the record on appeal from the Northern District of California was so overwhelmingly favorable to the case made by supporters of marriage equality that a contrary result would have been virtually inconceivable.
Nonetheless, today’s opinion on the merits frames the issue in a way many LGBT activists might not have expected. Writing for a two judge majority on the panel, Reinhardt, J., steered clear of issuing any kind of ringing declaration on the issue of marriage itself. Judge Reinhardt’s opinion is almost at pains to explain that the court takes no position on the issue of whether, as a matter of federal constitutional law, GLBT people enjoy “a fundamental right to marry.”
Instead, the majority opinion deals with questions of process.
Can a public right to be taken away simply because a majority of voters in a particular election may feel private or personal disapproval toward a discrete and insular minority group within the population?
Can a public right be taken away where the proffered justifications for stripping an identifiable constituency of a particular right do not bear even rational relationships to legitimate government objectives?
According to the Ninth Circuit, the answer in this case is “no.” “The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of the right as important as the right to marry.” Perry, slip opinion at 7. In reaching its conclusion, the Court relied heavily on the historic Supreme Court decision in Romer v. Evans (1996) 517 U.S. 620, in which the Court held unconstitutional a Colorado initiative measure which had forbidden any local government in Colorado from enacting measures prohibiting anti-LGBT discrimination. Romer, in short, stood and stands for the proposition that the electorate may not simply impose second-class citizenship on GLBT people simply because a majority of the electorate may disapprove of queerfolk or find us “icky.”
By carefully avoiding the larger question of whether there exists a right to marry a partner of the same gender, the Court may well have insulated itself from some, if not all, avenues of SCOTUS review; it is virtually a truism that when constitutional issues are at stake, a court --- whether a trial court or an appellate Tribunal --- should decide those constitutional questions on the narrowest possible basis. Certainly, the Ninth Circuit seems to have done so here.
Indeed, by framing its decision as being about the limitations of the initiative process, the Court positioned this case well within the parameters of long accepted federal jurisprudence on the subject of minority rights. Beginning with the famous Footnote Four of United States v. Carolene Products Co. (1938) 304 U.S. 144, in which the Supreme Court suggested that legislation singling out “discrete and insular” minorities for less favorable or unfavorable treatment might be subject to more searching scrutiny, federal courts have developed a body of case law providing for ascending levels of scrutiny when legislative classifications of individuals are in play.
By declaring that the proffered justifications for Proposition 8 could not even pass “rational basis” scrutiny, i.e. they were not even rationally related to any legitimate government interest, the Court also cleverly avoided ruling on the issue of whether sexual orientation constitutes a “suspect classification” which would require strict, high-level scrutiny of any statute purporting to classify on the basis of sexual orientation. Given that any holding identifying queerfolk as constituting a “suspect classification” would probably be stoutly resisted by the conservative SCOTUS majority, Judge Reinhardt was probably wise to avoid so holding.
Of course, anti-LGBT activists and social regressives will, and already have begun to, blast today’s decision. Given that three of the four front running GOP presidential wannabes have already expressed support for a so-called Federal marriage amendment, we may anticipate that Perry v. Brown will become a major part of the Republican campaign to unseat President Obama this fall. Certainly, this will be an issue for people who define America in terms of denominational orthopraxy; Rick “Google him” Santorum has often declared that his opposition to marriage equality is a hill he is “willing to die on.”
And perhaps, to borrow from the Klingons, today is a good day for social conservatives to die on that hill; our national conversation on marriage equality has shifted radically in the last decade as a majority of Americans have come to accept the proposition that Ruth and Naomi or Jonathan and David could have just as much opportunity to be happy or miserable in wedlock as Adam and Eve.
Certainly, we’ve come a long way since I was one of the first attorneys in California to take on a marriage equality challenge, almost 20 years ago. At the time, even in the queer community, the idea of marriage equality was the stuff of visionary thinking. Though the Hawai’i Supreme Court had ruled in favor of marriage equality, no one on the mainland was even willing to take up the issue. A professional colleague suggested, rightly it turned out, that we were 15 to 20 years away from marriage equality, and that a national conversation on the issue would have to ensue before the idea of same gender marriage could be taken seriously.
Today, that conversation has led to a national reconsideration of the issue of marriage equality. As more and younger Americans accustom themselves to the idea that withholding the liberty of marital contract from same gender couples makes no sense, social conservatives can be expected to fight all the more desperately. Yet, as was the case with our armed forces, participation in marriage by queerfolk has neither destroyed the institution nor has it caused Western civilization to collapse.
To almost any American younger than 50, the reality of out queerfolk participating openly in society is simply “not strange.” Virtually every straight American has LGBT coworkers, GLBT friends, LGBT neighbors, or queer family members. For most Americans under the age of 50, the so-called gay agenda has been held up to the light and found not merely unthreatening, but actually rather boring. For our agenda are usually the same as those of our straight neighbors; my gay agenda for yesterday included paying my Edison bill and my water bill; today my gay agenda will include visiting a family member in a nursing care facility.
Perhaps, in a sense, it was this understanding that queerfolk are so completely integrated into the quotidian realities of American society that made it possible for the Ninth Circuit to frame its opinion as it did, walking a fine line between acknowledging, as the Romer Court did, that anti-queer animus is not a constitutionally sufficient basis for legislation, while at the same time cleverly keeping marriage per se off center stage.
The arc of our constitutional universe is long, but today it, too, bent toward justice.
-XXX-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. In 1993, he handled one of the first challenges to California then-statutory same-gender marriage ban. The views expressed herein are his own, and not necessarily those of any entity or organization with which he is associated, nor are they intended as, and neither should they be construed as, legal advice.
According to the Ninth Circuit, the answer in this case is “no.” “The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of the right as important as the right to marry.” Perry, slip opinion at 7. In reaching its conclusion, the Court relied heavily on the historic Supreme Court decision in Romer v. Evans (1996) 517 U.S. 620, in which the Court held unconstitutional a Colorado initiative measure which had forbidden any local government in Colorado from enacting measures prohibiting anti-LGBT discrimination. Romer, in short, stood and stands for the proposition that the electorate may not simply impose second-class citizenship on GLBT people simply because a majority of the electorate may disapprove of queerfolk or find us “icky.”
By carefully avoiding the larger question of whether there exists a right to marry a partner of the same gender, the Court may well have insulated itself from some, if not all, avenues of SCOTUS review; it is virtually a truism that when constitutional issues are at stake, a court --- whether a trial court or an appellate Tribunal --- should decide those constitutional questions on the narrowest possible basis. Certainly, the Ninth Circuit seems to have done so here.
Indeed, by framing its decision as being about the limitations of the initiative process, the Court positioned this case well within the parameters of long accepted federal jurisprudence on the subject of minority rights. Beginning with the famous Footnote Four of United States v. Carolene Products Co. (1938) 304 U.S. 144, in which the Supreme Court suggested that legislation singling out “discrete and insular” minorities for less favorable or unfavorable treatment might be subject to more searching scrutiny, federal courts have developed a body of case law providing for ascending levels of scrutiny when legislative classifications of individuals are in play.
By declaring that the proffered justifications for Proposition 8 could not even pass “rational basis” scrutiny, i.e. they were not even rationally related to any legitimate government interest, the Court also cleverly avoided ruling on the issue of whether sexual orientation constitutes a “suspect classification” which would require strict, high-level scrutiny of any statute purporting to classify on the basis of sexual orientation. Given that any holding identifying queerfolk as constituting a “suspect classification” would probably be stoutly resisted by the conservative SCOTUS majority, Judge Reinhardt was probably wise to avoid so holding.
Of course, anti-LGBT activists and social regressives will, and already have begun to, blast today’s decision. Given that three of the four front running GOP presidential wannabes have already expressed support for a so-called Federal marriage amendment, we may anticipate that Perry v. Brown will become a major part of the Republican campaign to unseat President Obama this fall. Certainly, this will be an issue for people who define America in terms of denominational orthopraxy; Rick “Google him” Santorum has often declared that his opposition to marriage equality is a hill he is “willing to die on.”
And perhaps, to borrow from the Klingons, today is a good day for social conservatives to die on that hill; our national conversation on marriage equality has shifted radically in the last decade as a majority of Americans have come to accept the proposition that Ruth and Naomi or Jonathan and David could have just as much opportunity to be happy or miserable in wedlock as Adam and Eve.
Certainly, we’ve come a long way since I was one of the first attorneys in California to take on a marriage equality challenge, almost 20 years ago. At the time, even in the queer community, the idea of marriage equality was the stuff of visionary thinking. Though the Hawai’i Supreme Court had ruled in favor of marriage equality, no one on the mainland was even willing to take up the issue. A professional colleague suggested, rightly it turned out, that we were 15 to 20 years away from marriage equality, and that a national conversation on the issue would have to ensue before the idea of same gender marriage could be taken seriously.
Today, that conversation has led to a national reconsideration of the issue of marriage equality. As more and younger Americans accustom themselves to the idea that withholding the liberty of marital contract from same gender couples makes no sense, social conservatives can be expected to fight all the more desperately. Yet, as was the case with our armed forces, participation in marriage by queerfolk has neither destroyed the institution nor has it caused Western civilization to collapse.
To almost any American younger than 50, the reality of out queerfolk participating openly in society is simply “not strange.” Virtually every straight American has LGBT coworkers, GLBT friends, LGBT neighbors, or queer family members. For most Americans under the age of 50, the so-called gay agenda has been held up to the light and found not merely unthreatening, but actually rather boring. For our agenda are usually the same as those of our straight neighbors; my gay agenda for yesterday included paying my Edison bill and my water bill; today my gay agenda will include visiting a family member in a nursing care facility.
Perhaps, in a sense, it was this understanding that queerfolk are so completely integrated into the quotidian realities of American society that made it possible for the Ninth Circuit to frame its opinion as it did, walking a fine line between acknowledging, as the Romer Court did, that anti-queer animus is not a constitutionally sufficient basis for legislation, while at the same time cleverly keeping marriage per se off center stage.
The arc of our constitutional universe is long, but today it, too, bent toward justice.
-XXX-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. In 1993, he handled one of the first challenges to California then-statutory same-gender marriage ban. The views expressed herein are his own, and not necessarily those of any entity or organization with which he is associated, nor are they intended as, and neither should they be construed as, legal advice.
