Prop. 8 Appeals Court Ruling: Inside the Dissenting Opinion

Categories: Law & Order
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Same-sex marriage advocates rejoiced today as the U.S. Court of Appeals for the Ninth Circuit upheld U.S. District Court Judge Vaughn Walker's 2010 decision that Proposition 8, the 2008 California ballot initiative banning gay marriage, is unconstitutional.

The decision is almost certainly destined for appeal and a likely ruling before the U.S. Supreme Court. In the meantime, today's ruling was not an unalloyed victory for gay-rights advocates: One judge on the three-judge panel that upheld Walker's decision authored a 39-page decision dissenting from the majority.

The dissent by Judge N. Randy Smith could provide some insight into the arguments in favor of Prop. 8's constitutionality that the Supreme Court might seriously consider. UC Hastings College of the Law professor Evan Lee says there were three major issues on which Smith, a conservative, disagreed with the famously liberal Judge Stephen Reinhardt, who authored the majority opinion:

1. The relevance of Romer v. Evans. In a 1996 decision, the U.S. Supreme Court ruled 6-3 that Colorado could not amend its state constitution to stop towns and cities from recognizing gays and lesbians as a protected class. This case was cited as a precedent by the majority in ruling Prop. 8 unconstitutional, but Smith argues that the comparison is not an accurate one. Colorado's proposed amendment, he says, was more sweeping than Prop. 8. "Proposition 8 eliminates the right of access to the designation of marriage from same-sex couples, rather than working a far reaching change in their legal status," he wrote.

2. The appropriate standard for reviewing state laws.
A portion of Smith's opinion is devoted to a fairly abstruse discussion of "rational basis review," or federal courts' established practices for judging whether laws violate the equal-protection clause of the Fourteenth Amendment. Smith argues that federal courts, according to their accepted standards, should be reluctant to overturn state laws such as Prop. 8. He writes, "I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests," and "Precedent evidences extreme judicial restraint in applying rational basis review to equal protection cases."

3. The plausibility of the "optimal parenting" argument. One of the main legal arguments of Prop. 8's proponents is that the gay-marriage ban serves a legitimate state interest by encouraging the best form of partnerships for child-rearing. Reinhardt, in his majority opinion, dismisses the notion that straight couples are inherently better parents than gay couples, or the related argument that straight couples would choose not to marry if marriage were also available to gay couples. However, "Smith is saying, 'I'm not so sure,'" according to Lee. Smith writes, "the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting."

As Lee notes, the meaning of "responsible procreation" is far from clear in this context. But based on his assumption that this optimal-parenting theory is "arguable" -- whether or not it is wrong -- Smith urges judicial restraint, asserting that the justices should refrain from striking down Prop. 8.

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It is important to note that item number 3 carries no weight unless you conclude that the resulting effect of Proposition 8 would be to automatically force citizens of California who might otherwise be inclined to marry same-sex partners to marry opposite-sex partners and procreate.  Barring that effect, the argument that Proposition 8 "promot[es] responsible procreation and optimal parenting" fails.  The effect of the Proposition could not bring about this illogical conclusion, so the argument cannot be made to presuppose that it even might.  If Justice Smith had thought about 2 seconds longer to bring the argument to its singularly absurd conclusion, he might have had a prayer of making sense in his dissent; but because he had already come to his conclusion/ruling before even considering the facts of the case, he found it an unnecessary diversion from his task (which was obviously crafting a decision in favor of the Proposition 8 proponents' arguments regardless of whether the conclusion (or Prop. 8) passed the Constitutional equal protection questions or even the question of simple logical reasoning).


Very disappointing that the ruling was not unanimous, though the dissent offers a unique view on "judicial restraint" that's worth digesting and considering before dismissing it. While I disagree with Smith's conclusions, it's a fair bet that he knows more about the law than I do, and I appreciate that he brought a unique perspective to the case, and that he was only in the minority on the decision.

Erik from CA
Erik from CA

I've read Smith's dissent, and it's tortuous in its attempts to dismiss the rational of the majority.  The majority was correct (according to long precedent) to require the "strict scrutiny" standard to this case; Smith makes no real argument as to why only the "rational basis" standard should be applied here, he just says it should. That's not law, that's opinion.  He also spends a whole lot of time discussing Baker v Nelson, which the majority rightly dismiss as a STATE law case (it was decided by the Minnesota SCOTUS, on equal protection ground in MN).  The fact is that Baker v Nelson isn't a federal case (the US SCOTUS denied to hear it due to no grounds), and doesn't hold anything binding on a Federal case.  And, by his logic on Romer, it would be fine to pass laws which restrict rights of minorities, just removing rights one-at-a-time, instead of all at once. That's a ludicrous argument.

Overall the dissent is horrible, as it comes across as a super wishy-washy of "well, maybe the Prop 8 could be OK, I just don't know, so maybe we shouldn't overturn it".  It's a poorly-written dissent, and one which should be rightfully ignored by any superior court (whether the en banc 9th or SCOTUS).

Patrick Connors
Patrick Connors

Yes, by all means, we should be very cautious about NOT bending to the will of people that have unquestionable notions of their own supremacy.

If heterosexuals think that they are better at being parents and better at choosing partners and better at getting married and better at getting divorced and better at getting remarried and better at abusing their spouses and/or children and are better at having extra marital affairs and are better at conceiving children out of wedlock then why should that supremacy EVER be questioned??

What MINORITY group has the audacity to question the superior skills of heterosexual relations??

Heterosexuals are the MAJORITY!

How dare the gays!


Yeah, and all those heterosexuals that are on your side?

No, wait...  it has more impact if you just make ridiculous, baseless generalizations that can't even really be argued, because there's no content to take issue with.

Patrick Connors
Patrick Connors

"Ridiculous baseless generalizations"....hmm...sounds familiar....sounds just like the arguments used to pass Prop 8 and dozens of other amendments and laws all over this country by the majority of voters, doesn't it?? 

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