Informed viewers of the exchange between Judge Reinhardt, the liberal lion of the federal judiciary, and the darling of the Right, Ted Olson, (and who, we must remember, played a large part in creating our federal deficit) may have been puzzled. Ted Olson argued for the broader civil rights position - that prohibiting same-sex couples to marry violated the United States Constitution. Judge Reinhardt on the other hand, seemed to grasp at narrower positions. What may those be, and which would we prefer?
First, the court may find no standing. Judge Reinhardt seemed eager to find standing, though his other Democrat-appointed colleague, Judge Hawkins, seemed less convinced. So eager was Judge Reinhardt, that he began to push a seemingly puzzled David Boies on whether FRCP Rule 65, that would have applied Judge Walker's injunction to all those acting in "concert" with the governor/AG, meant that Imperial County's deputty clerk has standing (see my post below). As I explain in the post below, however, the standing argument is far from dead, and I think there is a fair chance that the matter may end there.
The second narrow ground, that all three judges kept returning to, was the fact that California gave all the rights of marriage, except for the term "marriage" to gay couples. The SF Chief Deputy Dist. Atty. Stewart and Olson both harped on this fact. If there was *any* other interest besides pure animus, then these other marriage-like rights would not be given to gays. Even if you want to nudge straight families into bringing life into the world only within a marital boudoir, such a vision would lose no luster by incorporating gay individuals (and if it did lose luster, Stewart argued, it would simply be animus that would cause marriage to seem less attractive - or "marketable" to use a term bandied about by Judge Smith - for incorporating gays).
Frankly, this argument makes me nervous - it increases the stakes for those opposing civil unions, and makes them better able to make a case that civil unions are the stepping stone for marriage. And that in turn negatively affects couples who don't give two figs for the term "marriage" but want civil unions in their states to ensure that they have the basic rights a loving couple should be entitled to. It may also incentivize more states to ban adoption/childrearing by gay individuals to prove that they *really* have an interest in prohibiting gay marriage. Hopefully, this parade of horribles won't come to pass, but I still would eschew overreliance on this argument.
If there is to be an animus rationale, rather than relying on existing civil unions law, I would prefer that it be based on Romer v. Evans, in which the Supreme Court invalidated a Colorado initiative that repealed municipal sexual orientation antidiscrimination ordinances, and forbade future antidiscrimination measures. Judge Reinhardt, joined by at least one colleague, kept noting the fact that this case was different because it "took something away." In other words, while Alabama's choice to deny any form of constitutional benefits is just fine and dandy since it NEVER has given any such benefits, California gave, and then tooketh away. This, they said, made it like Romer. Ted Olson agreed.
This seeming homage to the endowment effect (about which I will write a more theoretically slanted post later), imho, is slightly misleading. As defendants rightly noted, the Supreme Court has said in another case arising out of California, Crawford v. Board of Education, what state constitutions give, state constitutional amendments can take away - as long as such deprivations do not fall under the federal constitutional minimum. In Crawford for example, the U.S. Supreme Court upheld a California initiative that overturned desegregation remedies such as busing that were not required by the federal Constitution, but required by the California constitution as interpreted by the California courts. If Crawford is good law,this case cannot turn on the distinction that Prop 8 takes away previously endowed rights, in spite of (as Olson calls it) the "wall" of rights created by Lawrence v. Texas, Romer, etc.
Rather, the issue is that of animus. In Crawford, arguably, initiative proponents were arguably only defending federally recognized constitutional rights: the right of parents to have a say in how their child is educated, the right to be free of the racial discrimination to which one is subjected by certain desegregation plans. (While I know nothing about the actual arguments in the initiative in Crawford, I do know something about the very rational sounding "neighborhood schools" argument involved in the busing controversies of the 1970s in general). Here, however, animus was the only conceivable reason - as Stewart ably argued, the ballot materials seem to show a fear that straight marriage will be tainted by letting in gays. This animus is the distinguishing feature, the feature that makes this case like Romer and that makes the Proposition unconstitutional.
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