Gay Marriage and the Law

Towards the end of his landmark majority opinion in Lawrence
v. Texas (2003), where the Supreme Court struck down that
state?s anti-sodomy law as a violation of individual liberty,
Justice Anthony Kennedy inserted a reference to the looming legal
battle over gay marriage. The present case, Kennedy wrote, ?does
not involve whether the government must give formal recognition to
any relationship that homosexual persons seek to enter.?
?Do not believe it,? snapped Justice Antonin Scalia in an angry
dissent that accused the majority of having ?largely signed on to
the so-called homosexual agenda.? In Scalia?s view,
Lawrence threw the door wide open for gay marriage.
?Today?s opinion dismantles the structure of constitutional law
that has permitted a distinction to be made between heterosexual
and homosexual unions, insofar as formal recognition in marriage is
concerned.?
Was Scalia correct? We may soon find out. On December 6 a
three-judge panel of the federal 9th Circuit Court of Appeals will
hear oral arguments in the case of Perry v.
Schwarzenegger. At issue is California?s Proposition 8,
the controversial voter initiative which added the phrase ?only
marriage between a man and a woman is valid or recognized in
California? to the state constitution. In August, federal district
Judge Vaughn Walker?a
Ronald Reagan appointee championed by conservative legal hero
Edwin Meese?prompted the appeal by striking down Prop. 8 as a
violation of the Equal Protection Clause of the 14th Amendment,
which commands that no state may ?deny to any person within its
jurisdiction the equal protection of the law.?
As for Monday?s proceedings, the outcome looks likely to be
favorable to Prop. 8?s opponents. Earlier this week the 9th Circuit
announced that Judges Michael Hawkins, Stephen Reinhardt, and N.
Randy Smith will hear the appeal. Hawkins and Reinhardt are both
widely known as judicial liberals. Indeed, National
Review?s Ed Whelan
promptly denounced Reinhardt as arguably ?the most aggressive
liberal judicial activist in the nation.? But perhaps more
importantly, as George Washington University law professor Orin
Kerr pointed
out, ?Reinhardt writes like there is no Supreme Court, and as a
result his opinions have a remarkable ability to annoy the
Justices.? That makes the chances of Perry reaching the
Supreme Court even higher.
Assuming that happens, much will depend?as it often does?on the
swing vote of Justice Anthony Kennedy. And when it comes to gay
rights, Kennedy leans libertarian. In Lawrence v. Texas,
for instance, Kennedy declared that ?Liberty presumes an autonomy
of self that includes freedom of thought, belief, expression, and
certain intimate conduct.? Similarly, in his 1996 majority opinion
in Romer
v. Evans, Kennedy struck down a Colorado constitutional
amendment forbidding state officials from taking any action
designed to protect gays and lesbians from discrimination. As he
wrote, ?the amendment imposes a special disability upon those
persons alone. Homosexuals are forbidden the safeguards that others
enjoy or may seek without constraint.? Together, these decisions
suggest Kennedy will once again join the Court?s liberal bloc.
As well he should. If the state is going to be in the marriage
business at all?which it
shouldn?t be?then it has to treat same-sex couples the same way
it treats heterosexual couples. There?s no legitimate
constitutional reason to do otherwise. Supporters of Prop. 8

claim that banning gay marriage advances a state interest in
procreation. But if that?s true, why not ban infertile individuals
from getting married as well? Or perhaps the government should
require childbirth as a condition of the marriage license?
Similarly, Prop. 8 supporters
say the amendment is necessary to protect and promote
?traditional? marriage. Yet there?s no persuasive evidence that a
committed gay couple poses any sort of threat to heterosexual
unions. In short, the plain text of the Constitution requires Prop.
8 to fall.
Damon W. Root is an associate editor at Reason
magazine.

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