Same-Sex Marriage Opinion
posted by Gerard Magliocca
The Ninth Circuit’s decision invalidating Proposition 8, which overruled the California Supreme Court’s holding that the state could not prohibit same-sex marriage, is here. I am unpersuaded by the majority’s analysis.
My take is that the panel majority really wants to say that any ban on same-sex marriage is unconstitutional. But due to a concern that the Supreme Court will not agree, they came up with a narrower rationale. Because the CA Supreme Court read the State Constitution to say that same-sex couples could marry (and many did), it is unconstitutional to remove that right even if it might be constitutional not to grant the right in the first place.
This line of reasoning, if you take it seriously, is dangerous. First, it basically says that people have a vested right in a State Supreme Court’s interpretation of its constitution. Really? I wonder what the Ninth Circuit would have said if the California Supreme Court had simply reversed itself –is stare decisis now constitutionally mandated in some cases? Second, the only mechanism for people to express their disapproval for a state supreme court opinion that they dislike will be to recall, impeach, or not retain the judges, as was done in Iowa after that state’s same-sex marriage decision. I submit that we are better off with a system where some states use referenda to repeal unpopular decisions (even ones you like) than having all states eject judges when the voters don’t like one of their many decisions. Third, the Court’s analysis would render many state referenda constitutionally suspect (at least those that were done in response to a court decision). Finally, how would this analysis apply to the Federal Constitution? Are “We The People” prohibiting from amending the Constitution to overrule Citizens United because that would take away a First Amendment right from corporations that they are now happily exercising?
Of course, I don’t take the panel’s reasoning seriously. Neither will the en banc Court, I think. Whether they will bite the bullet and just say that a prohibition on same-sex marriage is invalid–pure and simple–is another question.
UPDATE: I hasten to add that President Obama still officially holds the view described by the Ninth Circuit as irrational.