Monday, February 20, 2012
Perry v. Brown: The Cowardly Bootstrap Argument Of The Ninth Circuit Declaring Proposition 8's Traditional Definition Of Marriage Unconstitutional
The Ninth Circuit Court of Appeals in a 2 to 1 decision written by the liberal Judge Stephen Reinhardt overturned the votes of seven million Californians. They ruled that California's Proposition 8 defining marriage as between a man and a woman was unconstitutional. The entire ruling rests on the most feeble of cowardly Constitutional arguments in upholding the baseless lower district court opinion. It misconstrues precedent and has the strongest of logical weaknesses.
Republican Presidential Candidate Rick Santorum in response on February 12, 2012 rightly said that "I think judicial tyranny is a serious issue in this — in this race and in this country, and we need judges who respect the people’s voice." I agree with the Republican candidates that there is a serious problem with a judiciary run amok, abusing its powers and ignoring its responsibilities. This is not to say that the Constitution allows for a "tyranny of the majority." But when the federal judiciary substitutes its whims for the laws of the people or their elected representatives with no serious constitutional basis for doing so it is activism and usurpation of power emanating from an unchecked judicial oligarchy.
The entire argument of the Ninth Circuit is that "the [Fourteenth Amendment's] Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason." The Court states, "In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it." In terms of the rights of gay couples, California otherwise affords them the same rights as heterosexual married couples." The Court then went on to point out that the California Supreme Court had extended the designation of marriage to gay couples, only to be changed back to what it was previously by the people in the amendmnet to the California Constitutional that was Proposition 8. The Court concluded that "[b]y using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional
on this ground."
This is a ludicrous ruling. It states that because California was socially liberal in extending so many rights to gay couples, only animus can explain not allowing the designation of marriage to apply as well. Is this to imply that if California were only more limited in the statutory rights it afforded homosexual couples that there would be no Constitutional violation? To say that that gay couples being treated with such equaniminity in the eyes of California law somehow serves as evidences for animus at the same time is self-contradictory and illogical. Does the Ninth Circuit seriously believe that somehow applying much of California's Family Code to gay couples somehow bolsters the argument that not extending marriage as well cannot be seen as having any "rational basis"? This is nonsensical on its face. If anything it demonstrates the uniqueness of the marriage debate that seperates it from so many other issues in which the State of California has been so accepting of gay couples and registered domestic partners.
As Cornell Law Professor William Jacobson aptly summarized the case: "The Court uses a bootstrap argument that since there was a prior right to samesex marriage (based on a California Supreme Court decision which gave rise to Prop. 8 ) — the taking away of that right without justification violated the 14th Amendment." The Ninth Circuit opinion says that "it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class." This is a troublesome passage. The Ninth Circuit equates a ruling by the California Supreme Court with "the State and society giv[ing] to committed relationships" the designation of marriage. But the judiciary is not the representative of the State and Society. To turn a Supreme Court into the representatives of "Society" itself makes the elementary mistake of confounding the roles of judiciary with the elected representatives of society in the legislature and popularly initiatives. It is the latter which most obviously is the true representative of the state of society. The Supreme Court of California ruling allowing gays to wed overturned what had before then been Proposition 22 which by an overwhelming popular vote made it statutory law that marriage was to be between a man and woman. Only a few months after this California Supreme Court ruling in 2008, the people once again affirmed that marriage was between an man and woman and by the popularly voted upon amendment to the California Constitution known as Proposition 8 overturned their Supreme Court's ruling. The Ninth Circuit now therefore essentially rules that judicial fiat is truly supreme, and for the people to legitimately and legally oveturn a right newly invented by the judiciary is nothing short of "animus" that cannot stand. The judicial arrogance of the Ninth Circuit is boundless, exceeding even the California Supreme Court which later itself upheld Proposition 8 as a legitimate and legal amendment to California's Constitution. To reason that once the judiciary invents a right out of thin air the people have no remedy and cannot oveturn it without the judiciary declaring the action void is a subversion of our system of laws.
The Ninth Circuit based its ruling on a single Supreme Court precedent. The Court reasoned that that decision written by Supreme Court Justice Anthony Kennedy in Romer v. Evans (1996) requires Proposition 8 be oveturned. Colorado voters had adopted Amendment 2 to their State Constitution precluding any judicial, legislative, or executive action designed to protect persons from discrimination based on their "homosexual, lesbian, or bisexual orientation, conduct, practices or relationships." The Supreme Court held that Amendment 2 of the Colorado State Constitution violated the Equal Protection Clause of the Fourteenth Amendment because it singled out homosexuals imposing on them a broad disability by denying them the right to seek and receive specific legal protection from discrimination. The problem is that California's Proposition 8 is patently not comparable to Colorado's Amendment 2. The majority of the Ninth Circuit even admitted:
To be sure, there are some differences between Amendment 2 and Proposition 8. Amendment 2 “impos[ed] a broad and undifferentiated disability on a single named group” by “identif[ying] persons by a single trait and then den[ying] them protection across the board.” Romer, 517 U.S. at 632-33. Proposition 8, by contrast, excises with surgical precision one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship. Proponents argue that Proposition 8 thus merely “restor[es] the traditional definition of marriage while otherwise leaving undisturbed the manifold rights and protections California law provides gays and lesbians,” making it unlike Amendment 2, which eliminated various substantive rights.
But the Ninth Circuit dismisses these differences by declaring "the surgical precision with which it [Proposition 8] excises a right belonging to gay and lesbian couples makes it even more suspect." Because California's Proposotion 8 only, with "surgical precision," dealt with the definition of marriage it plainly has no parallel in Romer v. Evans. The Ninth Circuit instead once again hangs its entire case on saying that Proposition 8 is not "justified by some legitimate state interest" because it strips from gay couples only the designation of marriage. To argue that a State that affords gay couples that register as domestic partners the same rights as married couples serves no legitimate interest whatsoever in still mantaining the traditional definition of marriage is plainly absurd. As Judge N.R. Smith Judge wrote in his dissenting from the Ninth Circuit ruling overturning California's Proposition 8:
The United State Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage... [P]roposition 8 is subject to rational basis review rather than to any heightened scrutiny... Here, the majority backs into its inference of animus...[but o]ur task is to determine whether Proposition 8 serves any independent legitimate government interest... Proponents argue that Proposition 8...preserves the fundamental and historical purposes of marriage...[and that if struck down it] would fundamentally redefine the term from its original and historical procreative purpose. This shift in purpose would weaken society's perception of the importance of entering into marriage to have children... Proponents also argue...that Proposition 8 promotes the optimal setting for the responsible raising and care of children - by their biological parents in a stable marriage relationship... [T]he 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... Given the presumption of validity accorded Proposition 8 for rational basis review, I am not convinced that Proposition 8 lacks a relationship to legitimate state interests.
The Ninth Circuit admits that its ruling is "the narrowest ground for adjudicating the constitutional questions before us" and that is chose this rationale "[b]ecause courts generally decide constitutional questions on the narrowest ground available." One has to be naive in the extreme to believe this. The real reason that the Ninth Circuit ruled the way it did was clearly twofold: (1) it wanted to limit the immediate effect of its ruling to California alone in hopes that the Supreme Court will avoid ruling on the case, and (2) because it wanted to present an argument that would, should the ruling stand before the Supreme Court for review, have the best chances of being upheld. The Ninth Circuit is strategizing that there is less of a chance of the Supreme Court taking up the case if it does not immediately effect every State within Ninth Circuit jurisdiction. Because the ruling clearly focused on how Proposition 8 came to be and used that as the basis for declaring "animus" and no "legitimate State interest" the immediate effect will be limited to California alone. Further, should the case end up before the Supreme Court nonetheless, the entire ruling will hinge on Romer v. Evans. Given that Anthony Kennedy is most likely to be the deciding vote on this case should it reach the highest federal bench, making the entire case contingent on a reading of a precedent Kennedy wrote also evidences strategic forethought.
The Ninth Circuit could have overturned Proposition 8 on the same highly dubious and problematic justifications of Judge Vaughn Walker at the lower Disrict Court level. Doing so would have been that much more authentic and genuine in answering the real question presented by the case: Does the Constitution demand gay marriage? Instead it chose the most cowardly of routes to reach the same result of overturning Proposition 8. It could have wrongly declared gay marriage a fundamental right under the Due Process Clause of the Fourteenth Amendment, and it could have absurdly said that the Equal Protection Clause of the Fourteenth Amendment also demands gay marriage nationwide. Instead it chose to say that because California's Supreme Court had allowed gay marriage in a State that had already allowed registered domestic partners the same rights, the people therefore had no right to hold back the Supreme Court as doing so amounts to unconstitutional "animus" lacking a "legitimate state interest." It's pure cowardice in not being willing to address the question (even wrongly) in the most honest and straightforward fashion, and instead chosing a very incredulous answer because of considerations regarding what the Supreme Court might decide.
The bottom line is that the Ninth Circuit overturned the will of seven million Californians on the flimsiest of Constitutional arguments. This is not to say that Constitutional questions should be popularity contests. But when the judiciary substitutes its will with no credible constitutional authority for the duly passed laws it is judicial usurpation. Arbitrary government by judiciary can indeed lead to judicial tyranny.
SOURCE: Steve Lackner - stevelackner.com
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