By Bill Boyarsky
In throwing out California’s notorious Proposition 8, which bans same-sex marriage, appellate Judge Stephen Reinhardt showed the heart of a romantic and humor in a ringing defense of the often-scorned institution of marriage.
Reinhardt wrote the majority opinion in the 2-1 ruling by the U.S. Ninth Circuit Court of Appeals that declared the proposition violated the Constitution. His opinion may wind up before the U.S. Supreme Court. Just how that conservative body will view an opinion by the most liberal member of the nation’s most liberal federal appellate court is unknown.
At the heart of his decision was the word “marriage.” California law gives same-sex partners the right to register as domestic partners. Along with that goes other rights such as raising children together, adopting each other’s children, having hospital visitation privileges, sharing community property and participating in a partner’s group health insurance policies.
Previous to voter approval of Proposition 8, the state Supreme Court had ruled the state constitution permitted same-sex couples to marry. The proposition took away that right.
Reinhardt wrote: “Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships by taking away from them the official designation of marriage with its societally recognized status.”
He said that “ ‘marriage’ is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.
“We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it, consciously or not to convey a sense of significance. … We are excited to see someone ask, ‘Will you marry me?’ whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see ‘Will you enter into a registered domestic partnership with me?’…
“Groucho Marx’s one-liner, ‘Marriage is a wonderful institution … but who wants to live in an institution?’ would lack its punch if the word ‘marriage’ were replaced with the alternative phrase. So too with Shakespeare’s ‘A young man married is a man that’s marr’d,’ Lincoln’s ‘Marriage is neither heaven nor hell, it is simply purgatory,’ and Sinatra’s ‘A man doesn’t know what happiness is until he’s married. By then it’s too late.’ ”
Acknowledging that California’s domestic partners statutes had carved out some rights to same-sex couples, he noted: “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries. The designation of ‘marriage’ is the status that we recognize. It is the principal manner in which the state attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.”
Taking away that status after the state Supreme Court had approved it violates the equal protection clause of the U.S. Constitution, Reinhardt ruled.
Reinhardt’s opinion is part of a movement that, while not sweeping the country, is making headway.
The Washington state Legislature passed a bill Wednesday legalizing same-sex marriage, a measure sought by Gov. Christine Gregoire, who is expected to sign it. Only New York, Connecticut, Iowa, Massachusetts, New Hampshire, Vermont and the District of Columbia allow such marriages, which are not recognized by the federal government.
President Barack Obama, looking at those numbers, remains uncommitted while still trying to keep same-sex marriage advocates on his side. In 2010, in a session with liberal bloggers, he said, “I have been to this point unwilling to sign on to same-sex marriage primarily because of my understandings of the traditional definitions of marriage. But I also think you’re right that attitudes evolve, including mine. It is an issue that I wrestle with and think about because I have a whole host of friends who are in gay partnerships. I have staff members who are in committed, monogamous relationships, who are raising children, who are wonderful parents. And I care about them deeply.” But he said he wasn’t prepared to “reverse” himself.
Republican presidential candidates Mitt Romney, Newt Gingrich and Rick Santorum quickly attacked the Reinhardt decision. The Church of Latter Day Saints, of which Romney is a member, was a major supporter of Proposition 8. In fact, a huge infusion of Mormon financial support at the end of the referendum campaign on Prop. 8 probably gave the measure its narrow victory.
Obama will probably continue to duck, and most of the Republicans who are running for his job will probably continue to assault same-sex marriage.
In the face of Obama’s obfuscations and the Republicans’ rantings, it was good to see a judge, in an unusual invocation of romance, corny old gags and the U.S. Constitution, conclude that marriage is so woven into the fabric of life that it cannot be denied to same-sex couples. Obama, Romney, Gingrich or Santorum wouldn’t want Reinhardt on his political stage. But I’m glad he’s in a courtroom.
AP / Ben Margot
Gay couple Tara Walsh, left, and Wen Minkoff, outside San Francisco City Hall in August 2010, respond to news of a court action against Proposition 8.