Also in Slate, Walter Dellinger looks at whether the Prop. 8 case should even be in the appeals court in the first place.

Is there any reason to wall marriage off from gay couples? Any reason at all?

That is what the whole debate over the constitutionality of California’s Proposition 8, the voter referendum that banned same-sex marriage, came down to Monday in a long argument before the U.S. Court of Appeals for the 9th Circuit. It was amazing to see lawyers and even one judge scrape around to find any sort of justification—and how thin what they finally dredged up was. Ten or even five years ago, opposition to gay marriage looked like a thick blanket you could wrap yourself in. Now it’s threadbare, with more holes than stitching.

The three judges hearing the appeal of Judge Vaughn Walker’s ruling knocking down Proposition 8 may never actually get to this question, since it wasn’t clear two of them, at least, thought anyone speaking today on the side of the voter referendum had standing to be there. I’ll let Walter Dellinger tackle that part of the argument for us. But on the merits—does Proposition 8 have a constitutional leg to stand on?—it wasn’t much of a contest. The judges seemed likely to divide, 2 to 1. Proposition 8 will get that one vote because Judge N. Randy Smith, the George W. Bush appointee on the panel, was ready to step in to save the initiative’s lawyers from themselves.

Asked to stand up for marriage in its man-and-woman-only form, Charles Cooper, the lawyer for the Proposition 8 backers, initially said the court could “distinguish between same-sex couples who cannot, ah, ah, procreate without the intervention of a third party. Compared to opposite-sex couples who can procreate, who can have unwanted pregnancies.” The idea, spelled out elsewhere, is essentially that heterosexual couples need marriage for self-protection. Since most of them can make babies all too easily, they need the state’s carrot and stick to make sure they raise them together and are legally bound. Gay couples have to put more effort into having children, goes the rest of the argument, so they don’t need the bond of marriage to whip them into shape.

This is a strange and backward argument. It’s also entirely unclear why it means we have to reserve marriage for straight people as opposed to letting them marry at all. Asked at trial how permitting gay marriage would harm straight couples, Cooper famously said, “I don’t know.” (Yes, his opponents made sure to quote him on that today.) If no one can say how striking down Proposition 8 will do harm, then what’s the rational basis for upholding it?

Rational basis is the legal standard the court will probably use to evaluate the California ban. It’s not a high bar. It means the state just needs some reasonable rationale for excluding gay couples from the benefits of marriage. But even Judge Smith expressed some concern about meeting it. He pointed out to Cooper that California has now granted gay couples all the legal rights and responsibilities of marriage, through civil unions, while withholding from them just the title. “You’re left with a word, marriage,” the judge said. “What’s the rational basis for that?”

“You’re left with a word, but a word that is really the institution,” Cooper answered. “If you change the word, you change the institution. The name of marriage is effectively the institution.”

This fell flat. So the other judges on the panel, Clinton appointee Michael Daly Hawkins and Carter appointee Stephen Reinhardt, stepped in with questions about Romer v. Evans, the 1996 Supreme Court case in which gay residents challenged an amendment to the Colorado constitution that ordered cities to exclude them from anti-discrimination legislation. Colorado’s amendment failed the rational-basis test, the court held in an opinion by Justice Anthony Kennedy, because it subjected gays to “disfavored legal status” out of mere animus—prejudice.

Romer could offer a way to strike Proposition 8 down while standing in Kennedy’s relatively safe shoes. Hawkins and Reinhardt repeatedly came back to the fact that Kennedy’s opinion stands for the dangers of taking away rights from a particular group once they’ve enjoyed those rights for a time. In California, gay couples got the right to marry from the state Supreme Court in May 2008. Then, in the November election, that year, the voters passed Proposition 8 and snatched marriage back. Isn’t Proposition 8 just like the Colorado amendment the Supreme Court eliminated in Romer, Hawkins and Reinhardt asked?

Cooper said no. He tried to bat Romer away. Colorado’s amendment “rendered homosexuals strangers to the law,” he argued. It was “sweeping.” It bears no resemblance to modest little Proposition 8. Does that mean “it’s bad if you take away a bunch of rights but OK if it’s just one?” Hawkins asked.

The Romer argument has a flaw: It would allow the California Supreme Court ruling to trump the voters. That’s not how California’s system of initiatives is supposed to work, Cooper pointed out. Smith stepped back in to have another go at finding a rational basis. Framing his question again in terms of California’s decision to give same-sex couples civil unions while withholding marriage, he said. “I’m trying to find the rational basis in this particular situation, when California has gone as far as it has. I’m wondering if it’s not just to market the marriage of a man and a woman—is that enough for rational basis?”

“It’s to preserve the institution of marriage for the purposes it has always served, which in turn flow from the unique procreative capacities of men and women,” Cooper answered. And that was it—all the boilerplate he could repeat.



When Cooper sat down, it was Ted Olson’s turn to argue on behalf of the same-sex couples who brought this case to trial. (David Boies, the other half of this team, argued the standing question in the first hour.) Olson got hung up on words for a minute, too—he doesn’t like the terms “gay marriage” or “same-sex marriage,” he said, because the Supreme Court has never defined marriage as straight or opposite-sex. Of course, no one has asked the justices to do that yet. Judge Reinhardt dryly pressed Olson to answer the question: Is marriage a constitutional right “you can’t take away,” once it’s been given? Olson finally said yes and he also gave his approval to deciding the case on the narrower basis of following Romer.

Then Olson turned back to the rational-basis test. He reminded the court of the “yes on 8” campaign, which framed the initiative as a means to “protect our children.” (This was evoked at trial by a Proposition 8 witness, Hak-Shing William Tam, who testified that the campaign messages were designed to convince people that “gay marriage will encourage more children to experiment with the gay lifestyle, and that that lifestyle comes with all kinds of disease.”) The Proposition 8 campaigners also said that the law “needs to be enacted because the existence of same-sex marriage will make children prematurely occupied with issues of sexuality,” Olson said. “That is nonsense.” Such a justification would equally warrant banning comic books, video games, and “conversations with other children.” This won the afternoon’s biggest laugh. Olson ran with it.

“What conceivable thing can we conceive of that would justify doing the damage that’s being done to our citizens of California?” he asked rhetorically. “What is it?”

Beware the rhetorical question. Sometimes, a judge will answer it. “Hang on, maybe I can suggest a couple of things,” Smith said. “Do you believe in the idea of distinguishing marriage from domestic partnership in name only as a vehicle to promote it for responsible procreation? Since all things being equal, children are most likely to thrive when they are raised by the father and mother who brought them into existence? Would that be a rational basis?”

Olson replied that this was “flatly at odds with the evidence.” Smith essentially conceded that this was true about the evidence that was presented at trial—quite a comment on the dismal record the Proposition 8 backers have created. But the appeals court isn’t necessarily confined to that record, he said. Olson pointed out that no one at trial showed that the children of gay couples are by any important measure at a disadvantage. It used to be that gay-marriage opponents could credibly utter such warnings. Now research shows definitively that the kids of gay couple fare just as well as the kids of anyone else. The American Psychological Association filed a friend-of-the-court brief in this case to say just that. Maybe Smith can somehow convince himself this is true, anyway. But he’s not going to win over Judge Reinhardt or Judge Hawkins. They made that clear today.

It’s hard to see, in fact, how such an utterly groundless argument could persuade the entire Ninth Circuit, if the court as a whole votes to rehear the case after the panel issues its decision. What about Justice Anthony Kennedy if the case goes to the Supreme Court? That’s the elephant-on-the-table question for another day.

For now, I keep marveling over a line Justice Sandra Day O’Connor wrote in her concurrence in Lawrence v. Texas, the 2003 decision striking down state sodomy laws. Lawrence didn’t presage gay marriage, she promised, because “preserving the traditional institution of marriage” is a legitimate state interest. She didn’t say why. Seven years later, it’s hard to see how she could fill in that blank. This takes us back to Judge’s Smith question about “marketing”: Is tradition for tradition’s sake a good enough reason to exclude gay couples from marriage, as a right and an institution? Doesn’t there have to be more to it than that?

In fact, Charles Cooper did offer an additional, more convincing rationale for upholding Proposition 8. He reminded the judges that if they strike down they law, they will be taking the definition of marriage away from the voters. This is a concern many gay-rights advocates share: A court case is a less democratic means to their end than an election or a vote by a legislature. But this is a problem of process, not substance. For better or worse, Proposition 8 is before the court. It had a bad day there.

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