The Ninth Circuit’s Prop 8 Decision: Good News For California, Bad News For Alabama

The most interesting thing about today’s decision striking down California’s unconstitutional Proposition 8 isn’t the fact that supporters of marriage equality won — that result was easy to predict from the judges’ comments during oral arguments more than a year ago. Rather, the most interesting thing about today’s decision is how narrow it is. The court crafted a rationale that applies to Prop 8 and probably only applies to Prop 8. While the opinion is firmly rooted in precedent, it expressly declines to consider the sweeping rationale employed by District Judge Vaughn Walker that is also grounded in precedent and the Constitution.

In 1996, the Supreme Court struck down an anti-gay Colorado constitutional amendment that stripped many gay men and lesbians of their existing legal rights in a case called Romer v. Evans. Today’s opinion relies heavily on Romer, honing in on the fact that Prop 8 stripped gay couples of a right they already enjoyed prior to its enactment — the right to marry a person of their choosing. As the Ninth Circuit explains:

The is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation. . . . The Supreme Court held that Amendment 2 violated the Equal Protection Clause because “[i]t is not within our constitutional tradition to enact laws of this sort” — laws that “single out a certain class of citizens for disfavored legal status,” which “raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” . . .

Proposition 8 is remarkably similar to Amendment 2. Like Amendment 2, Proposition 8 “single[s] out a certain class of citizens for disfavored legal status . . . .” Like Amendment 2, Proposition 8 has the “peculiar property” of withdraw[ing] from homosexuals, but no others,” and existing legal right — here, access to the official designation of “marriage” — that had been broadly available, notwithstanding the fact that the Constitution did not compel the state to confer it in the first place.

In other words, the court finds a constitutional violation that is unique to the state of California — only California once extended equal marriage rights to gay couples, then yanked them away through a subsequent amendment.

There are two upshots to this California-specific reasoning. The first is that it reduces the likelihood that the Supreme Court will hear the case, although Supreme Court review remains very highly likely. Had the Ninth Circuit applied Judge Walker’s much broader reasoning, the implication would be that every single state has a constitutional obligation to marry gay couples. The justices typically hear cases that present an exceptionally important legal question of national importance, and such a broad decision would certainly qualify. Today’s decision, by contrast, is narrow enough that there is an off chance the justices could pass on it.

The other upshot is that today’s opinion gives an out to the justices in case a majority of them find Prop 8 constitutionally offensive but aren’t yet ready to kick off a political firestorm by ordering Alabama to marry same-sex couples. The opinion is, at its heart, a decision that discretion is the better part of valor, and that the Constitution is best served by banking an easier victory today and putting off the big fight until tomorrow. Gay couples in Alabama — and indeed the Constitution itself — may suffer longer for that decision, but today’s decision also maximizes the likelihood that Proposition 8 will stay dead.