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Prop 8: Kennedy’s Ratchet?

February 8, 2012

I should be modest and say I’m speculating, but after having read the core of the 9th Circuit’s decision striking Prop 8, and the dissent, I’m really sure I can see how this plays out.

The Court chose the narrowest possible grounds:  neither a sweeping Due Process argument nor a fundamental right to marriage equality, but an argument grounded in Justice Kennedy’s Evans v. Romer reasoning: that it is impermissible to single out one group and take away something already provided, just from them, without rational basis, even if the thing given and taken is not required by the Constitution.  All the action is in the decision at pp. 33-54 — I will update with links to the decision when I have more time.

Anyone who knows my mind on this knows I’ve long believed that Kennedy, a conservative but the author of both Romer and Lawrence, two GLBT rights decisions that shocked and disappointed conservatives, would never allow himself to go down in history as the swing vote against marriage equality and be discussed by future legal scholars as an old guy who couldn’t get past the bigotry of his formative years.  The 9th Circuit creates a roadmap for him to avoid being clearly on the wrong side of history while also selecting a half-measure, and it allows him to make a doctrine of his own writing.

The 9th Circuit majority placed emphasis on two things: that California law allowed same sex couples all the incidents of marriage before Prop 8, and that Prop 8 didn’t change anything about that, except to strip same sex couples of the word, which they acknowledge has tremendous cultural significance.  Having once granted the use of the word, to then take it away from one group and not the other requires a rational relationship to some legitimate government interest, they said, following Kennedy’s Romer opinion.  The rest is details:  there’s no rational basis, all the justifications are nonsense.   (The dissent disagrees, and I disagree with the dissent, and I’ll write on that if I find the time.) 

All Kennedy (and I say Kennedy because all the Democratic appointees on the Court are, in my view, sure votes for equality, while all four of the solid conservative bloc are sure votes to oppose any same sex marriage rights) has to do is agree with this reasoning and he sets up the following rule:  that no State is required to extend any recognition, including marriage, to same sex couples, but that once it grants any such right, it is constitutionally barred from taking it away.  A one-way ratchet, where the State’s political processes can decide when they get there, but they’re all going there eventually and not going back. 

That’s not the result I want.  I prefer a sweeping decision.  But I am quite certain that’s the decision we’ll get, allowing Kennedy both to avoid being the Justice who stood against the tide of history, and also avoid being the Justice who required the Deep South to recognize same sex marriages.  So that’s what he’ll do.

(The title is a reference to Brennan’s Ratchet, the principle that the Court’s interpretation of what the 14th Amendment required was a floor, but that Congress could use the 14th to apply more rights than the Court required.  But the 9th Circuit uses the word “ratchet” in one section of the opinion as well, picking up on terminology in the briefing.  “Kennedy’s Ratchet”, however, is not a term in use — yet.  It produced no Google hits when I searched, so I think I’m coining it.)

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3 Comments leave one →
  1. Julian Morrison permalink
    February 8, 2012 11:09 am

    This is going to panic the conservatives in Washington. Their “oh no you don’t” referendum is sure to be caught by this ratchet.

    • February 8, 2012 11:38 am

      Precisely. There isn’t much daylight between California (court granted full recognition, referendum took away the word) and what could happen in Washington — except that in Washington they might lose the referendum, right? But even if they win, they lose. If this goes to the Supremes, the situations are so similar that the decision I predict will invalidate the Washington referendum. If they conservatives don’t appeal, or the Supremes don’t take it, or a referendum in Cali reverses Prop 8, the 9th Cir. decision stands and any Washington referendum is a dead letter. It will not be long before marriage equality is the law from San Diego to the North Pole.

  2. February 8, 2012 12:24 pm

    Well reasoned argument on where it might go and it sounds not only plausible but likely. I just cannot see, especially in light of the Lisa Pond case, why the failure to allow gay marriage isn’t a simple violation of the equal protection clause.

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