Proposition 8: The Smith Dissent

I went to law school so that I could help people, and so that I could understand things better.  This post may lead some people to doubt that I can do the latter, but hold on and let me speculate for a bit.

Last Tuesday, the United States Court of Appeals for the 9th Circuit ruled 2:1, and very narrowly, that California’s Proposition 8, which had removed the designation of “marriage” from same-sex couples, was unconstitutional.  That was all that Proposition 8 did.  It left everything else intact (California has laws that create an “equal-in-everything-but-name” domestic partner status).

The majority said that rational basis review (the easiest form of review for a state law to pass, since it essentially says that as long as a law is even vaguely, conceivably related to a legitimate government purpose) was applicable, and that even at the level, Proposition 8 was driven purely by animus (or disapproval) and that, since animus cannot ever be a legitimate government interest, Proposition 8 failed even this lenient test.  A real slap down.

Now, the thing is, the third Judge, Smith, disagreed.  and I think that his dissent (he also concurred with sections of the majority opinion) is telling.

The dissent is builds on a painfully careful account of rational basis review.  The conclusion that Smith reaches is that, well, as SCOTUSBLOG puts it:

California had sufficient interests to justify the enactment of the same-sex marriage ban: steering childbearing into the realm of marriage among couples biologically capable of having a child together, and promoting strong parenting by providing for children to be born into the more stable relationship of such marriages.  He credited the arguments of the backers of Proposition 8 that their measure would further those interests sufficiently to justify its enactment.

(Actually, I don’t think Smith went that far–correctly, under rational basis review, he noted that Proposition 8 could further those interests.  But he went beyond that, and more on that below).  SCOTUSBLOG goes on to state that “The Smith dissent thus provides a basis for more conservative judges on higher courts to decide differently than the panel majority did.”

That may well be the case.  Smith sounds like a fairly conservative judge, though I have no knowledge of him other than his Wikipedia entry.

But before he reaches that conclusion, Judge Smith does something else.  He points out that, while animus (which can be taken here to mean disapproval) can never be a legitimate government end, it can serve as a means to a legitimate government purpose.  Consequently, even

[a]ssuming animus or moral disapproval were one of the purposes of Proposition 8, the measure would still survive rational basis review if there were also a valid rational basis behind Proposition 8.  (From p. 110 of the PDF linked above)

It’s true that Judge Smith agrees that two purposes that proponents of Proposition 8 argue for are legitimate government purposes.  But he also seems to agree with the plaintiffs in the case that the mechanism by which they operate is private bias.  Private bias could never be a legitimate end for Proposition 8, but it could (conceivably) be a mechanism through which it functioned.  Combine this with the mixed-legitimate and-illegitimate argument above (id.) and you get a kind of Catch-22.  So long as animus exists, it can be used to achieve a legitimate government purpose.

Consequently, Judge Smith cannot, under the extremely relaxed approach of rational basis review, “conclude that Proposition 8 is ‘wholly irrelevant’ to any legitimate governmental interests.” Id. at 126.  And that means, unless I’m mistaken, that a strict interpretation of rational basis review means that there’s no way, under that standard, of beating laws like Proposition 8.

But there’s something there in Smith’s pointing out that the mechanism, the means, depends on private biases that would be impermissible as ends.  Judges, my Legal Writing professor told our class, are fond of signalling through dicta (dicta are things that you say that you don’t really need to say to reach your legal conclusion).  Was Judge Smith signalling here?  I honestly don’t think he needed that fairly lengthy exegesis of rational basis review to reach his conclusion.

Was he signalling (it’s possible) that it is s a short step from that Catch-22 position to arguing that legitimate governmental interests justify their means regardless of what those means may be?  I don’t think that’s a step that a court would want to take.  Maybe I’m wrong and it is; but where a private bias can thus become self-perpetuating in this way, it seems to me that a court (including The Court) might look for a way out.  There are a couple.

The Court could find (contra to its summary dismissal of forty years ago of a case called Baker v. Nelson), that denying a marriage license to a same-sex couple amounts to a “substantial federal question.”  This would likely mean giving sexual orientation suspect or quasi-suspect class status, (the former similar to that accorded race, the latter similar to that accorded gender), and applying intermediate scrutiny (which would almost certainly be enough).  But the court seems loathe to create a new suspect or quasi-suspect classes.

Or the court could use a quasi-suspect class that already exists.  I’m pretty sure I got this argument via my Con Law professor (and if I didn’t, I apologize for the attribution): What does the law prevent a woman from doing that any man can do?  Marry a woman.  Since gender is already a suspect class, might this call down the wrath (what wrath there may be) of intermediate scrutiny on Proposition 8?

In any event, stay tuned.  There are sequels on the way.  And I’d be very surprised if Judge Smith’s dissent doesn’t figure prominently in them, perhaps in surprising ways.

 

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One Response to Proposition 8: The Smith Dissent

  1. Dahlia Lithwick thinks (rightly) that SMith’s is a weak dissent:
    http://www.slate.com/articles/news_and_politics/jurisprudence/2012/02/why_the_proponents_of_a_gay_marriage_ban_will_soon_be_speechless.html

    She’s right and she’s not. Yes, this is an “is that all you have?” dissent. But its importance is that it highlights just how little is required under rational basis review. I *think* Judge Smith stretched it not to dissent per se, but to show that there were no clothes. It’s pretty clear that, in his view, the proponents of Proposition 8 are getting by on the skin of their teeth.

    All that’s needed is a tiny drop of scrutiny. But rational basis doesn’t require that.

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