On Monday, the Ninth Circuit issued a decision holding that California’s Proposition 8, which banned same-sex marriage, was unconstitutional based on the Equal Protection Clause of the United States Constitution. The case, Perry v. Brown, will probably go before the Supreme Court eventually. However, when it does, even if the court affirms the Ninth Circuit’s decision that Proposition 8 violated the Equal Protection Clause, it will not necessarily become illegal to ban same-sex marriage in all 50 states.
The reason is based on a critical nuance in the case that most journalists have neglected to note. A lower court had determined that Proposition 8 was unconstitutional for two reasons. First, banning gay marriage violates the Due Process Clause of the 14th Amendment because the right to marriage is part of the critical right to privacy, and any law abridging people’s rights to marry must overcome a very high burden in order to be valid. Second, banning gay marriage violates the Equal Protection Clause of the 14th Amendment because it creates a distinction between gay and straight people that is not rationally related to a legitimate governmental purpose.
If the Supreme Court were to accept either argument, it would become illegal for any state or the federal government to ban same-sex marriage. However, yesterday, the Ninth Circuit (the intermediate step on the way to the Supreme Court) did something interesting. It neither accepted no rejected the two arguments articulated by the lower court. Instead, the court used a third argument with different implications than the first two.
The third argument is also based on the Equal Protection Clause. According to that argument, there is a difference between granting a substantive right to all people and taking away a right from a narrow group of people. So, for example, assume that the state of Michigan passes a law that says that all Michiganders have a right to receive a free box of chocolates every month from the government. Then, the people of Michigan place a proposition on the ballot to amend the Michigan Constitution to state, “No person taller than six feet in height shall be eligible to receive free boxes of chocolate from the state.” Assume the proposition passes. Is it constitutional? The answer is that it is probably not.
Notice that before Michigan started passing the laws in this example, the state had no obligation under the US Constitution to give free chocolate to anyone. However, once the state decided to give out free chocolate, it could not take away that chocolate from a specific group of people for no apparent reason. The Equal Protection Clause requires that all laws that create divisions between groups of people must at least be rationally related to a legitimate governmental purpose. So, what purpose does excluding tall people serve? It seems that the only purpose is to exclude a politically unpopular group from a benefit granted to citizens as a whole. But excluding politically unpopular groups is not a legitimate governmental purpose. So, even though Michigan had no obligation to give anyone chocolate in the first place, once it decided to do so, it could not withhold that benefit from certain groups for no good reason.
The third argument in Perry v. Brown was very similar. In 2008, the California Supreme Court held that both homosexuals and heterosexuals have a right to marry a partner of their choice in California. Later in 2008, the people of California approved Proposition 8, which amended the California Constitution to ban the term “marriage” from being used to describe unions between homosexual couples. Thus, prior to Proposition 8’s passage, California had already granted a right to marriage to all of its citizens. Proposition 8 took that right away from the homosexual community.
Thus, the gay marriage supporters in the Perry v. Brown case have argued that the Constitution does not necessarily have to guarantee a right to gay marriage to all people in the United States in order for them to win. Even though states are not required to provide free chocolate to citizens, if states voluntarily decide to do so, they cannot remove that benefit from a politically unpopular group. Similarly, even if the US Constitution does not give both homosexuals and heterosexuals a right to marry, once a state voluntarily decides to grant that right, it cannot remove the right from homosexuals alone.
This third argument is the one that the Ninth Circuit accepted. The court declined to rule on the more sweeping arguments. And the distinction is critical. If the US Supreme Court accepts this case and decides it on the same grounds, there will still not be a right to same-sex marriage in all 50 states. There will only be a right to same-sex marriage in the states that have, at some point, already granted that right to its citizens.