In yesterday's post (Part 1) I discussed how Judge Jones neglected to analyze the fourth element of suspect class analysis and refused to discuss the extensive scientific evidence demonstrating the equality of gay and lesbian couples. Today's post critiques Judge Jones' use of precedent and his failure to honestly confront the real purpose behind the Nevada law banning same-sex marriage.
In his decision in Sevcik v. Sandoval upholding Nevada's ban on same-sex marriage Judge Robert Jones badly misconstrued the decision of the United States Supreme Court in Romer v. Evans. (In his defense, the Ninth Circuit also misunderstood Romer.) Judge Jones also betrays his duty to honestly identify the true purpose of the Nevada law; instead, at point of his opinion where he discusses the "legitimate purpose" served by Nevada law, Judge Jones invokes a "gay panic" justification that the Ninth Circuit had already rejected.
Nevada is in the Ninth Circuit. Nine months ago in Perry v. Brown the United States Court of Appeals for the Ninth Circuit struck down Prop 8, a California law that is similar to the Nevada law that District Court Judge Jones recently upheld. In both Nevada and California the state offers identical legal rights to same-sex and opposite-sex couples, except that the word "marriage" is reserved for opposite-sex couples.
How did Judge Jones distinguish Prop 8 from the Nevada law? Judge Jones ruled that Perry was distinguishable because Prop 8 was adopted after the California Supreme Court ruled that gays and lesbians had the right to marry. In contrast, the identical provision of Nevada law was adopted before gays and lesbians were granted any marriage rights. Judge Jones stated:
unlike in Perry, the State of Nevada has not stripped away any existing right to the title ofThe Ninth Circuit in Perry also found this fact of "withdrawing rights" significant. At several points in its opinion the Court of Appeals stated that California's mistake was in extending the right of marriage to gay and lesbian couples in the first place - once that was done, it must have a legitimate reason for withdrawing those rights, and it had none.
“marriage” while leaving its constitutional incidents in place.
The Ninth Circuit and Judge Jones both invoke the Supreme Court's decision in Romer v. Evans, 517 U.S. 620 (1996) as support for the proposition that it is unconstitutional for a state to withdraw from a minority group advantages that have already been conferred, but that is a gross misreading of Romer. The constitutional violation in Romer was not that the fact that the state repealed local laws prohibiting discrimination on the basis of sexual orientation. It was that the state made it impossible for the state legislature or state subdivisions to reenact such laws in the future. Here is the core paragraph from Justice Kennedy's opinion in Romer:
It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. “ ‘Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.’ ” Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. “The guaranty of ‘equal protection of the laws is a pledge of the protection of equal laws.’ ”Id. at 633-634.
Furthermore, the critical inquiry is not the timing of the government's actions, but rather its purpose. Colorado Amendment 2 would have been unconstitutional regardless of whether it repealed existing municipal ordinances prohibiting discrimination on the basis of sexual orientation. Justice Kennedy returns to this theme over and over again in his opinion in Romer stating that the problem with Colorado Amendment 2 was the fact that it was adopted simply because of animosity towards gays and lesbians:
A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. “[I]f the constitutional conception of ‘equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.” ...In Perry the Ninth Circuit came to the same conclusion about Prop 8. The California law was unconstitutional because it had no other purpose than to treat gay and lesbian couples as second class citizens. The Court said:
We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. ...
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws.
Absent any legitimate purpose for Proposition 8, we are left with “the inevitable inference that the disadvantage imposed is born of animosity toward,” or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, “the class of persons affected.” We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California. “Prejudice, we are beginning to understand, rises not from malice or hostile animus alone.” Disapproval may also be the product of longstanding, sincerely held private beliefs. Still, while “[p]rivate biases may be outside the reach of the law, ... the law cannot, directly or indirectly, give them effect.” Ultimately, the “inevitable inference” we must draw in this circumstance is not one of ill will, but rather one of disapproval of gays and lesbians as a class. “[L]aws singling out a certain class of citizens for disfavored legal status or general hardships are rare.” Under Romer, we must infer from Proposition 8's effect on California law that the People took away from gays and lesbians the right to use the official designation of ‘marriage’—and the societal status that accompanies it—because they disapproved of these individuals as a class and did not wish them to receive the same official recognition and societal approval of their committed relationships that the State makes available to opposite-sex couples.
Judge Jones perceived no hatred, no bias, no prejudice, no irrational fear, no intent to harm gay and lesbian couples - not even any disapproval - in the legislation that Nevada adopted during a hysterical period of homophobic ranting by politicians, commentators on talk radio, and spokespersons for certain conservative advocacy organizations.
According to Judge Jones, what was the real reason that Nevada and other states adopted laws and constitutional amendments prohibiting same-sex marriage? Why, to protect the institution of marriage, of course! Judge Jones raised the tired canard that opposite-sex couples would decide that the institution of marriage was not worth entering into if gays and lesbians were also admitted. He reasoned:
Should that institution be expanded to include same-sex couples with the state’s imprimatur, it is conceivable that a meaningful percentage of heterosexual persons would cease to value the civil institution as highly as they previously had and hence enter into it less frequently, opting for purely private ceremonies, if any, whether religious or secular, but in any case without civil sanction, because they no longer wish to be associated with the civil institution as redefined, leading to an increased percentage of out-of-wedlock children, single-parent families, difficulties in property disputes after the dissolution of what amount to common law marriages in a state where such marriages are not recognized, or other unforeseen consequences. Because the family is the basic societal unit, the State could have validly reasoned that the consequences of altering the traditional definition of civil marriage could be severe.
Not only is Judge Jones admitting that the purpose of this law was grounded in contempt for gays and lesbians; not only is he implicitly conceding that gay and lesbian families do not comprise part of "the basic social unit;" but he was also disobedient in his duty as a lower court judge. In Perry the Ninth Circuit had already concluded that this type of "gay panic" argument "lacks any ... footing in reality."
We add one final note. To the extent that it has been argued that withdrawing from same-sex couples access to the designation of ‘marriage’—without in any way altering the substantive laws concerning their rights regarding childrearing or family formation—will encourage heterosexual couples to enter into matrimony, or will strengthen their matrimonial bonds, we believe that the People of California “could not reasonably” have “conceived” such an argument “to be true.” It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman. While deferential, the rational-basis standard “is not a toothless one.” “[E]ven the standard of rationality ... must find some footing in the realities of the subject addressed by the legislation.” Here, the argument that withdrawing the designation of ‘marriage’ from same-sex couples could on its own promote the strength or stability of opposite-sex marital relationships lacks any such footing in reality.Judge Jones' opinion in Sevcik v. Sandoval illustrates the weakness of the arguments against same-sex marriage. Only by closing his eyes to reality - to the historical facts, the findings of medical researchers and social scientists, and the true motivations of the law's supporters - can Judge Jones find a way to uphold this law.