Today, in Perry v. Brown, the Ninth Circuit affirmed the district court’s determination that California Proposition 8 — in which the people of California had declared marriage to be the union of a man and a woman, which in turn reversed the judgment of the California Supreme Court — violates the Due Process and Equal Protection Clauses of the U.S. Constitution.  In a 2-1 decision, the court, in an opinion authored by Judge Stephen Reinhardt, held that none of the reasons offered by the proponents of Proposition 8 were legitimate under the most deferential standard of review that the court exercises in these kinds of cases — rational basis review.  Throughout the decision, the court repeatedly emphasized that this case was about taking away a right which had already been granted (by the California Supreme Court), rather than extending a right which had not yet been granted.  The dissenting judge disagreed with the court’s conclusions with respect to the rationality of the reasons offered in support of Proposition 8.

Unlike in the district court decision, there is little in this decision which overtly concerns religion.  The court did reject the claim that Proposition 8 protects religious liberty by making it less likely that religious institutions would be penalized for refusing to provide services to same-sex couples.

But the more interesting connections are indirect.  The court held that taking away the right of gay marriage (after it had been provided by the California Supreme Court) bore no rational relationship to the aims of childrearing, responsible procreation, and the promotion of a stable family structure.  It also held that the aim of preserving a tradition — including one based on “sincerely held private belief” — is not rationally related to a legitimate state interest.  Here’s a portion of the court’s opinion at 71-72:

Tradition is a legitimate consideration in policymaking, of course, but it cannot be an end unto itself . . . . A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce, amounts to an impermissible preference against same-sex couples themselves, as well as their families.

Absent any legitimate purpose for Proposition 8, we are left with the ‘inevitable inference that the disadvantage imposed is born of animosity toward,’ or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class affected.’  Romer, 517 U.S. at 634.  We do not mean to suggest that Proposition 8 is the result of ill will on the part of the voters of California . . . . Disapproval may also be the product of longstanding, sincerely held private belief.

UPDATE: Over at the Volokh conspiracy, Orin Kerr makes a very interesting point that, at least on my reading, the Ninth Circuit did not consider in its panel opinion.  Kerr writes that at least a part of the reason that the people of California might have voted for Proposition 8 was to register — “symbolically,” as the Ninth Circuit says — their disapproval of the California Supreme Court’s decision to extend marriage to homosexual couples.  The point was to issue a rebuke to the California Court.  One can, of course, agree or disagree with that symbolic popular expression.  But to my mind, it is difficult to conclude that a symbolic expression  with that motivation does not satisfy the rational basis standard of review.

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