Last October, the United States Court of Appeals for the Ninth Circuit held that the Constitution forbids anti-gay marriage discrimination, thus setting in motion a series of events that led to Alaska, Arizona, Idaho, Montana and Nevada becoming marriage equality states. Like most federal appeals court decisions, October’s decision was handed down by a three-judge panel, and the state of Idaho asked for a larger panel of the Ninth Circuit to reconsider this decision under a process known as “en banc” review. On Friday, the full Ninth Circuit announced that it would not give the case further review, ensuring that the panel’s decision would stand unless it is overruled by the Supreme Court.
This outcome is not particularly surprising. Most federal judges to consider the issue — including all but one federal appeals court that has decided a marriage equality case — agree with the Ninth Circuit’s decision. Additionally, Democratic appointees vastly outnumber judges appointed by Republicans on the Ninth Circuit (although it is worth noting that President Clinton did appoint some conservatives to the court due to compromises he struck with a Republican Senate). Nevertheless, the Court’s decision not to reconsider marriage equality appears to be particularly lopsided. Of the 29 active judges on the court, just three joined an opinion dissenting for the denial of en banc review (though it is possible that more judges voted to grant review, yet decided not to make their dissent public).
The dissenting opinion was authored by Judge Diarmuid O’Scannlain, a Reagan appointee who moderated panels on socially conservative topics at three of the last four national conventions hosted by the conservative Federalist Society. O’Scannlain’s primary argument, however, rests on a narrow technicality that has virtually no chance of influencing the Supreme Court. Much of the rest of his opinion rests on platitudes that, if applied as actual legal rules, would prevent the courts from striking down virtually any law.
O’Scannlain devotes the bulk of his opinion to Baker v. Nelson, a 1972 non-decision by the Supreme Court in an early marriage equality case. We label this case a “non-decision” because it is best understood as an attempt by the justices to avoid deciding an issue rather than as an actual resolution of the question of whether the Constitution permits marriage discrimination.
Though the Supreme Court has mandatory jurisdiction over a narrow band of cases — that is, there are cases that they are required to take whether they want to or not — the justices have discretion to hear or turn away most matters that come before them. Over time, however, the size of their mandatory docket has decreased. When it was larger, the Court would sometimes turn away cases they did not wish to hear with brief orders that were often no longer than one sentence. Baker is one of these cases, the Court’s entire opinion in Baker v. Nelson consists of “Appeal from Sup. Ct. Minn. dismissed for want of substantial federal question.”
Nevertheless, O’Scannlain scolds his colleagues for failing to treat Baker as if it were a binding command from the nation’s highest Court. “If the panel had any lingering doubts as to whether judicial interference is appropriate,” in this case, O’Scannlain claims that “Baker makes clear that it is not.”
Whatever force this conclusion might have had in 1972, it is difficult to argue today that the question of whether gay people are entitled to equal treatment under the law is not even a matter that is worthy of consideration by federal courts. The Supreme Court struck down a Colorado constitutional amendment that discriminated against gay people in Romer v. Evans, and it struck down marriage discrimination at the federal level in United States v. Windsor. Not one justice, either in the majority or in the dissent, cited Baker. While there will undoubtedly be dissenting votes if the Supreme Court extends marriage equality to all 50 states, all nine justices appear to at least believe that gay people are entitled to have a federal court hear their case when they allege they they face unconstitutional discrimination.
O’Scannlain’s reliance on Baker to defer the issue of marriage equality, in other words, is a bit like reminding your babysitter that she’s not allowed to spank you. Even if it’s true, it won’t do you much good when your father comes home.
Though the lion’s share of his opinion concerns Baker — and O’Scannlian continues to bring Baker up even after he’s moved on to other arguments that allegedly support his view — the judge does offer two other reasons for why he thinks courts should not side with marriage equality.
His second argument, if not heavily caveated, would prove entirely too much. O’Scannlian claims that by “injecting itself in the public’s active political debate over whether same-sex couples should be allowed to marry,’ it acts in a way Justice Kennedy has deemed ‘inconsistent with the underlying premises of a responsible, functioning democracy.’” The citation to Justice Anthony Kennedy is hardly surprising. Kennedy is widely viewed as the swing vote on gay rights issues, although he’s voted fairly consistently in favor of them during his time as a justice.
If it were true a court must never “inject itself in the public’s active political debate” over a contentious issue, than public school segregation would be constitutional so long as it was enacted by democratic majorities. No doubt anticipating this critique, O’Scannlian claims in a footnote that while “blind deference to legislative majorities would be an abdication of our judicial duty,” “no such blind deference occurs when inferior courts follow Supreme Court precedent directly on point, the states have codified rational and long-accepted definitions of marriage, and the legislative process has shown itself to be capable of giving voice . . . to both sides of the heretofore on-going conversation.” The Supreme Court precedent O’Scannlain refers to, that is allegedly “directly on point,” is Baker v. Nelson. So his second argument against marriage equality ultimately depends upon his first.
O’Scannlain does offer one unique justification for marriage discrimination, though he devotes less than five pages of his opinion to this argument. “[F]ederal courts,” he claims, “have avoided the kind of federal intrusion into state domestic relations law exemplified by the panel’s opinion.” This argument is, at least, rooted in the way a minority of federal judges read Windsor, to preserve what O’Scannlian describes as “the central role of the states in fashioning their own marriage policy.”
But this reading of Windsor is a minority view for a reason. Even Justice Antonin Scalia, perhaps the Court’s most strident opponent of his colleagues’ gay rights decisions, admitted in his Windsor dissent that nationwide marriage equality became “inevitable” the minute Windsor was decided. “[N]o one should be fooled,” Scalia wrote, by claims that Windsor’s reasoning will not be turned against marriage discrimination in the states. “[I]t is just a matter of listening and waiting for the other shoe.”
So O’Scannlain relies upon two arguments that rest on a non-decision whose limited reasoning is contradicted by subsequent cases, and a third argument that even Justice Scalia views as futile. That is not a good omen for supporters of discrimination if this is all that the judge is able to come up with.