In Prop. 8 Ruling, a Liberal Lion Coos

(AP Photo/Eric Risberg, Pool)

Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals in San Francisco. Today, the federal appeals court in San Francisco upheld a lower-court decision finding California's ban on same-sex marriage unconstitutional. 

Stephen Reinhardt, a judge on the Ninth Circuit Court of Appeals,* has been called almost everything in the book. Conservatives slaver at the mention of his name; even liberals sometimes criticize his audacity. The Onion once ran a deadpan story reporting that he had “ruled the private celebration of Christmas unconstitutional ... ‘[i]n accordance with my activist agenda to secularize the nation.’”

The last great liberal lion of a once-numerous pride, Reinhardt has written dozens of decisions that embody old-style judicial liberalism (including one holding that terminally ill individuals have a right to seek medical assistance in suicide). His decisions have been overruled so often by the United States Supreme Court (as in the assisted-suicide case) that court-watchers began to call grants of cert. to the Ninth Circuit “the writ of Reinhardt.” 

But I suspect that, in all his 80 years, no one has ever called Stephen Reinhardt stupid. Reinhardt’s opinion in Perry v. Brown, the Proposition 8 case, is written to survive Supreme Court review, and for that reason, it is written for an audience of one: Justice Anthony M. Kennedy.

The opinion, written by Reinhardt and Judge Michael Daly Hawkins (Judge N.R.  Smith dissented) is more carefully limited than some initial press reports suggest. “The court ruled that Proposition 8 violated the 14th Amendment of the Constitution by discriminating against a group of people, gay men and lesbians,” The New York Times reported. True enough—but as the Times noted lower in its story, the court’s opinion did not say that denying marriage to same-sex couples violates the 14th Amendment. Even if the court’s rationale is adopted by the Supreme Court, states like, say, Virginia or Alabama can continue to limit marriage to opposite-sex couples. Iowa, Oregon, or a number of other states, however, may be in trouble.

That’s because the Ninth Circuit did not hold that same-sex couples have a right to marry. It held that once a state has granted them the right to marry, it can’t take it away arbitrarily. In California, a state court decision in 2008 had held that the state constitution required the state to allow same-sex marriage. Counties began issuing marriage licenses, and some 18,000 couples got married under the law.

Then, in November 2008, the voters passed Proposition 8, which amended the state constitution to say, “Only marriage between a man and a woman is valid or recognized in the state of California.” The Ninth Circuit’s opinion quotes the official voter guide as explaining that the measure “changes the California Constitution to eliminate the right of same-sex couples to marry in California.”

This is where Reinhardt’s opinion finds the constitutional violation. “Plaintiffs do not ask that marriage be extended to anyone,” he writes. “The question is whether there is a legitimate governmental interest in withdrawing access to marriage from same-sex couples.” It explains that “Proposition 8 subtracted a disfavored group from a scheme of which [the group] was already a part.” And since California law before and after extended all the privileges and incidents of marriage to same-sex couples—who could form “civil unions”—the only reason to have taken the name “marriage” away must have been disapproval of homosexuality.



Now it so happens that there is an important case that relates to this precise question—Romer v. Evans, the 1996 decision in which a majority of the Court struck down Colorado’s Amendment 2. That anti-gay measure voided all state and local laws that protected gays against discrimination. The Court held that Colorado had no obligation to pass such laws, but that having passed them, it couldn’t amend its constitution to void them without a very good reason. The law singled out gays and lesbians and stripped them of all statutory rights. “The amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests,” the majority held.

Romer was a major victory for gay rights; it is the underpinning of the Court’s 2003 decision in Lawrence v. Texas, invalidating state laws against homosexual conduct by consenting adults.

By a bizarre coincidence, the author of Romer was Kennedy, who is likely to be the swing vote if—or more likely, when—Perry v. Brown reaches the Supreme Court.

Anyone who has studied Reinhardt’s career must know that, underneath the language of restraint, the last lion is seething to say something broader about human dignity and the essential worth of gays and lesbians.  In one of his memorable decisions, Harper v. Poway Unified School District, he held that a public school district could ban the wearing of T-shirts citing religious disapproval of homosexuality. In response to a dissent by Judge Alex Kozinski, he roared, “Perhaps some of us are unaware of, or have forgotten, what it is like to be young, belong to a small minority group, and be subjected to verbal assaults and opprobrium while trying to get an education in a public school, or perhaps some are simply insensitive to the injury that public scorn and ridicule can cause young minority students. Or maybe some simply find it difficult to comprehend the extent of the injury attacks such as [the T-shirt] cause gay students. Whatever the reason for the dissenters' blindness, it is surely not beyond the authority of local school boards to attempt to protect young minority students against verbal persecution.”

But would roaring have helped in this case? A good intermediate court judge, laboring under the eye of a hostile superior court, must be, to quote the Gospel of Matthew, wise as a serpent and wary as a dove. Tuesday’s opinion was much more dove than lion. “We need not and do not answer the broader question [of a general right to gay marriage] in this case,” Reinhardt coos.

The Perry case will almost certainly go to The Show. I wouldn’t bet my house on five votes to require gay marriage in all U.S. states, territories, and Guantanamo. But I suspect Reinhardt has a different outcome in his mind—four Justices (you fill in the names) supporting the broader right to marry, four others (again, you pick ‘em) denying its existence, and one, whose initials might be AMK, affirming Reinhardt’s narrower opinion.

Such are the dreams of a lion in winter.

*An earlier version of this article mistated Judge Reinhardt's title and middle initial. He is Judge of the Court of Appeals, not a senior judge, and his middle initial is "R" for Roy.