By Rebecca L. Brown, Newton Professor of Constitutional Law at USC Gould School of Law. She is the author of the 2010 ACS Issue Brief, “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role.”
The Ninth Circuit did a great job this week in deciding the Perry case, involving the constitutionality of Proposition 8 — not only because of the result it reached, but because of how it got there. I think the court did a great service to the plaintiffs in Perry (as well as those similarly situated), to the state of California, and to the Constitution itself. I say this because the court focused very carefully and narrowly on the facts of the particular case, and did not yield to the temptation, always present in a sensational case, to be dramatic, to exaggerate, or to stretch the law. Instead, in my view, the court did exactly what we want a court to do when faced with any Equal Protection challenge: to consider very carefully the interests that the state offers in support of its unequal treatment of some of its people, and to insist that those interests be both genuine and closely tied to the law under attack.
On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage. The court found none.
At the same time, the court did not accept invitations to create broad new rules of constitutional meaning that could have unknown legal and political implications down the road. It stayed true to its mission of deciding this case with as much candor and judicial humility as possible.
From a constitutional theory perspective, the great triumph of this analysis, in my view, is that it contributes to the integrity of equal protection analysis. Whatever type of inequality a state creates, it must be called upon to meaningfully defend exactly what it has done with a justification appropriate to the classification it has erected. This rule pays tribute to the basic principle in our democracy that equality must be respected in all things, except as truly necessary to the common good.
The approach adopted by the Ninth Circuit is as respectful as possible to a regime of popular lawmaking while still staying true to its essential mission of protecting basic equality. It did not need to stretch any precedent, but rather offered a modest application of existing law wholly consistent with the principles and holdings of the Supreme Court precedents in this area. This type of constitutional interpretation does a service to judicial legitimacy. It contributes to the kind of incremental process of societal change that is most consistent with democratic principle and, ultimately is most likely to find long-term acceptance as constitutional law.
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