Proposition 8 is a law in search of a reason. What is the purpose of denying the use of one word — "marriage" — to a class of people deemed by the state itself fully capable of taking on all of the child-raising and other responsibilities associated with the word?
The search for a reason may now go to theU.S. Supreme Court, assuming the court agrees to weigh the issue. Last week, in Perry vs. Brown, a divided panel of the U.S. 9th Circuit Court of Appeals held that Proposition 8 was unconstitutional under the Constitution's equal protection clause.
The 9th Circuit relied heavily on Justice Anthony Kennedy's opinion for the Supreme Court in 1996 in Romer vs. Evans, which invalidated a state constitutional amendment forbidding any law protecting homosexuals from discrimination in any area of life. In a 6-3 decision, the court held Colorado's Amendment 2 unconstitutional, in part, because it was "at once too narrow and too broad," identifying "persons by a single trait and then denying them protection across the board."
But is the Supreme Court likely to apply the reasoning of Romer to the Proposition 8 case? As the 9th Circuit panel conceded, the initiative did not deny homosexuals legal protection across the board. Unlike the blunderbuss Amendment 2, Proposition 8 used what the opinion aptly called "surgical precision" to remove the title of marriage from otherwise fully protected relationships. In other words, the court seemed to argue, Proposition 8 violated the principle of Romer because it was at once too narrow and too narrow. That is a curious, and I think strained, application of Romer vs. Evans.
To the extent the 9th Circuit relied on the distinct harm caused by withdrawing six months' worth of court-ordered recognition, the opinion is even more shaky. California voters closed the window as soon as they could; surely their rebuke of state courts can't by itself constitutionally immunize judicial decisions.
Nevertheless, the root question will be why the window was closed at all. Romer makes clear that it is not constitutionally acceptable to disadvantage a class of persons simply to express animosity toward them. But Proposition 8's proponents certainly did not agree that the initiative was motivated by dislike of gay people. And though anti-gay arguments were made in high-profile campaign ads, it would be difficult to know what really motivated 7 million people to vote as they did.
If Proposition 8 is ultimately declared constitutionally unacceptable by the Supreme Court, it might have to reach beyond Romer, to a decision mentioned only sparingly by the 9th Circuit. That is the Supreme Court's decision in Lawrence vs. Texas, which struck down a law banning homosexual sex.
The sorry history of this country's legalized discrimination against homosexuals is striking for the absence of reasoned justifications, for arbitrary lines between conduct allowed and conduct forbidden, and for a tendency to use the asserted immorality of homosexual acts to justify widespread opprobrium of homosexuals. History certainly suggests that an unreasoning prejudice or aversion motivated some laws shutting out gay people.
Texas, for example, prohibited gay sex in 1973 in a so-called homosexual conduct law, but in the very same year the state legalized consensual heterosexual sodomy, adultery and even bestiality. One Texas appeals court judge, a Republican and self-described "country lawyer" who had no schooling in gay rights causes, saw that contradiction as nonsense. In an interview about the Lawrence case, he told me that when it reached his court, he wondered how the state could justify a surgically precise ban on gay sex.
"I kept thinking that if they decriminalized all those things that one would normally say are immoral, then why did they leave this one in? There had to be a reason," he recalled thinking, obviously still baffled. "And nobody could explain to me why."
In Lawrence, the court ruled that the state could not impose the majority's moral code on homosexuals. It could not "demean their existence or control their destiny" by driving them away from relationships. Homosexuals, the court observed, enter relationships for the same reasons heterosexuals do: to share intimacy with a partner, to show affection and obligation, to have and raise children, to establish a place they call home and to love people they call family. California recognized this reality through its broad domestic partnership law.
But just as Texas prosecutors could no longer explain in constitutionally acceptable terms why the law excluded homosexuals from an otherwise transformed codification of sexual morality, the proponents of Proposition 8 cannot explain the titular exclusion of gay couples from an otherwise transformed landscape of family law and marital practice. California has, for very good reasons, abandoned a seamless worldview of legally recognized relationships from which gay couples and their families must be absented. Proposition 8 in California, like the homosexual conduct law in Texas, is an anachronism.
So what potentially dooms Proposition 8 as it nears the Supreme Court is not necessarily the distinct whiff of prejudice but a lingering impression of incoherence. Despite what some critics last week charged, to challenge the sufficiency of the reasons offered for Proposition 8 is not to indict traditional marriage itself as bigoted and irrational. There are many rational, indeed compelling, reasons to support marriage between one man and one woman. Among others, getting heterosexuals to take responsibility for the children they conceive is a powerful reason to encourage them to marry.
But encouraging heterosexuals to take seriously their familial obligations is no reason by itself to deny same-sex couples the full social and legal incentive to settle down. And to confer parental rights, marital rights and marital obligations on same-sex couples without giving them "marriage," Proposition 8's proponents must more convincingly answer one question.
Dale Carpenter is a professor at the University of Minnesota Law School and the author of the forthcoming "Flagrant Conduct: The Story of Lawrence vs. Texas."