Gay Marriage Ruling a Memo to Justice Kennedy: Noah Feldman

Feb 8 (Bloomberg) -- What’s in a name? In 2008, supporters of a state ballot measure convinced a majority of California voters that there was a meaningful difference between extending full domestic partnership rights to gay couples and calling their relationships marriage.

The U.S. Court of Appeals for the Ninth Circuit agrees -- sort of. On Tuesday it held that the measure, Proposition 8, violated the U.S. Constitution not because there is a right to gay marriage, but because it took away the equal right to the institution of marriage that gay Californians briefly held under state law before Proposition 8 was passed.

The upshot is that while gay-rights advocates should rightly be happy with the decision, it isn’t the major legal breakthrough that some hoped it would be. The Supreme Court could uphold the circuit judges’ position without making same-sex marriage legal across the U.S.

The California issue is rooted in language. Before and after Proposition 8, gay couples in California had the same rights as heterosexual couples when it came to adoption, benefits, hospital access and all other legal aspects of marriage. Yet opponents and proponents alike are convinced that the word “marriage” means everything.

Religious Traditionalism

Those who reject gay marriage while (at least in principle) accepting practical equality for gay couples have found themselves in a bind when trying to explain their position in court. For most, the basis for this stance surely lies in religious traditionalism. Mores have changed, and discrimination against gay people is no longer socially acceptable in many circles. But marriage is so bound up in religious tradition that a radical change, like the possibility of same-sex unions, challenges people’s settled expectations and their ideals of what marriage is supposed to be.

The establishments of most conservative religious denominations and the bulk of followers -- from Catholics to Baptists to Orthodox Jews to Mormons to Muslims -- are the stalwarts in opposing gay marriage. In these traditions, change comes incrementally and over generations. Almost 500 years after the Reformation, Catholicism still rejects divorce. Orthodox Judaism is not going to endorse marriages between Jews and non-Jews, no matter what more-liberal Jewish denominations might do.

Yet such religious traditionalism has proven difficult to translate into a legally cognizable argument. Because of the separation of church and state, Proposition 8’s proponents couldn’t simply tell the truth: That they oppose gay marriage because it is against their faith and their customs. They did claim in court that their religious liberty was affected, but this argument is a sure loser, since they may continue to determine their own marriage rules. The state’s adoption of gay marriage will have no more coercive effect than the state’s recognition of divorce does on the Catholic church.

There is a certain paradox here. The state recognizes marriages performed by priests, rabbis and imams -- a privilege that itself deviates from strict separation between religion and government. This makes civil, state-sanctioned marriage seem religious, which is exactly why religious traditionalists are threatened by the idea of state marriage extending to gay people.

Imagine that the state didn’t use the word marriage to describe any relationship, but only recognized civil union for all couples, gay or straight. In this parallel universe, there would be no discrimination. And presumably, neither religious traditionalists nor gay-rights advocates would have reason to complain. But that imaginary world isn’t ours. Once the state calls something marriage, supporters of gay equality have every reason to insist that this honorable word must extend to everyone equally.

Activist Judge

The Ninth Circuit found this argument to be powerful. In a typically tongue-in-cheek passage of his decision, Judge Stephen Reinhardt, who proudly wears the mantle of the most activist liberal judge on the federal bench, quoted Groucho Marx: “Marriage is a wonderful institution ... but who wants to live in an institution?”

Reinhardt explained that such jokes wouldn’t be funny if the word marriage were replaced with an alternative phrase. “How To Register a Domestic Partnership With a Millionaire,” he added, wouldn’t make much of a movie title.

From the argument that the word marriage confers a sense of dignity and belonging, Reinhardt could have gone on to find a basic constitutional right to marriage equality. But here the 80-year-old Reinhardt, who has a long history of having decisions reversed by the Supreme Court, decided to get crafty. Instead of asserting a general right to gay marriage, he restricted his holding to the strange situation that obtained in California, where the state Supreme Court had declared a right to gay marriage before Proposition 8 reversed it. For 143 days, gay couples in California could marry.

Reinhardt made that interregnum the key to his decision. Proposition 8, he said, had no other purpose but to take away the equality fleetingly enjoyed by gay Californians. The only point of the law was to make the equal unequal. That brought the case into a parallel with Romer v. Evans, the 1996 case in which the Supreme Court invented modern gay rights.

In the Romer case, Justice Anthony Kennedy wrote that a Colorado constitutional amendment that prohibited treating gays as a “protected class” was itself an irrational form of discrimination. In dissent, Justice Antonin Scalia memorably disparaged Kennedy as mistaking a culture war for “a fit of spite.”

By treating Proposition 8 as Romer redux, Reinhardt was sending a direct message to Justice Kennedy, his former colleague on the Ninth Circuit. He was telling the justice that if the Supreme Court decides to review the new decision, Kennedy would have to uphold it -- since it went no further than Kennedy had gone before. That would allow Kennedy, if he wished, to avoid declaring a general right to gay marriage in an election year.

Cautious Justices

This was also a message for gay-marriage advocates: By asserting that the case could be decided on narrow grounds, Reinhardt was actively making it harder for the more progressive justices on the Supreme Court to use this case to find a right to gay marriage. If the most liberal judge in the system declined the opportunity to take the issue all the way, why should the considerably more cautious justices go there?

The Supreme Court might not take the case at all. The state of California declined to defend Proposition 8, leaving the task to the measure’s political proponents, who may lack the constitutional standing to appear in court on its behalf.

But in an election year, anything is possible. It only takes four “yes” votes for a case to be heard, and the four conservatives -- Scalia, Samuel Alito, John Roberts and Clarence Thomas -- might want to force the issue on Kennedy, daring him to complete his journey from Ronald Reagan appointee to civil-rights hero. A decision favoring gay marriage, even restricted to California, might help get out the conservative vote in November. The Mormon church helped finance Proposition 8 in the hopes of making common cause with other values conservatives. And right now, anything that would help Mitt Romney may be starting to look good.

(Noah Feldman, a law professor at Harvard University and the author of “Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices,” is a Bloomberg View columnist. The opinions expressed are his own.)

To contact the writer of this article: Noah Feldman in Cambridge, Massachusetts, at

To contact the editor responsible for this article: Tobin Harshaw at

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