Perry v. Brown v. Cohen

Introduction

Legal Concepts

The Perry majority frames the question they have been asked to decide as follows:

"[Did] the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage,' and to compel the State ...to substitute the label of 'domestic partnership' for their relationships?" (1615).

In this framing, the crucial word seems to be "legitimate." When Cohen describes a court's approach to determining "actual value," he points out that "[t]he actual value of a utility's property, then, is a function of the court's decision, and the court's decision cannot be based in fact upon the actual value of the property." (Cohen, 818). The idea of "legitimacy" in Perry v. Brown is a similarly circular legal conclusion; whether or not there was a legitimate reason for enacting Proposition 8 is a function of whether or not the court finds that there was.

The dissenting judge frames his reasoning in equally self-referential terms, stating that he is "not convinced that Proposition 8 lacks a rational relationship to legitimate state interests." (1673). Here, the keyword "legitimate" is modified by equally unhelpful "state interests." The primary issue supporters of Proposition 8 identified as a "state interest" was that of procreation and childrearing. It's hard for me to see what about this topic is inherently part of a state's interest; the kinds of arguments that justify such a connection seem to me to justify almost any activity as a matter of "state interest." In any case, there is no extra-legal practical definition of "state interests," it is again a legal conclusion reached by courts when courts think it should be reached.

The dissent here mentions the "rational basis" test, the default level of scrutiny employed by courts in due process and equal protection cases. This raises another host of transcendental nonsense concerns. The first is the decision to apply rational basis review, rather than intermediate or strict scrutiny. "Proposition 8 is a classification neither involving fundamental rights nor proceeding along suspect lines . . . [so] I do not address the application of strict scrutiny review." (1651). Why isn't marriage a fundamental right, despite the fact that the Supreme Court stated that "[m]arriage is one of the basic civil rights of man, fundamental to our very existence and survival" while striking down anti-miscegenation statutes? Loving v. Virginia, 87 S.Ct. 1817, 1824 (1967). Because the judge here says so. A suspect class is loosely defined as a minority group which has been purposefully discriminated against because of an immutable characteristic (religion is included, raising questions about the definition of immutability). Why are homosexuals not a suspect class? Because the judge here says so.

Even if the decision to choose "rational basis" review could be defended in real-world terms, we would not have advanced very far in our battle against transcendental nonsense. We would have to investigate more legal conclusions: whether or not Proposition 8 was "reasonably" related to, again, a "legitimate state interest."

Words are what they do

I was reminded of the discussion regarding the PPACA and whether there is a meaningful difference between calling something a "penalty" or a "tax." In Perry v. Brown, even the majority recognized that those with "domestic partnerships" in California were entitled to "rights and responsibilities that are identical to those of married spouses . . . ." (1610). At first glance, this may seem like an analogy for the penalty/tax argument, a matter of mere semantics. However, the word "marriage" has a unique place in our society, and the majority included a 300-word paragraph detailing this fact (page 1613). You can read a short blog post that includes the relevant paragraph here.

Similarly, the supporters of Proposition 8 argued that there was no difference between the rights of homosexuals before In re Marriage Cases, 43 Cal.4th 757 (Cal 2008) and after Proposition 8 passed. Only in the intervening six month period were homosexuals able to marry in California. Not even the majority claims that states are constitutionally required to extend marriage to homosexual couples, and the supporters of Prop 8 argue that there is no difference between not extending the right to marry and revoking the right to marry. Just as the majority argued above that there is unique symbolism to the word "marriage," here they argued that there is symbolic importance to the act of revoking the right to marry. I agree that a state’s active revocation of a certain group’s rights puts an official stamp on discrimination.

Judges are people, too

Publication or not, we know that the majority was written by Judge Reinhardt and Judge Hawkins, nominated by Jimmy Carter and Bill Clinton, respectively. Judge Smith, who dissented, was nominated by George W. Bush. "According to the classical theory, these things have nothing to do with the way courts decide cases." (Cohen, 846). Even in a functionalist model, such facts are not necessarily determinative. After all, Proposition 8 was first struck down in district court by Judge Walker, who was originally nominated by Ronald Reagan and then re-nominated by George H. W. Bush. Still, the fact that the opinion in Perry v. Brown is basically premised on self-referential legal conclusions makes me wonder what role human biases played in the determination of those conclusions.

-- By MarcLegrand - 13 Feb 2012