On gay marriage, same-sex couples can’t count on bailout from federal courts – The Star-Ledger
By Robert J. Hume
The New Jersey Legislature’s votes this week on same-sex marriage have become even more critical in light of recent judicial activity. Last week’s decision from a federal appeals court in California has all but foreclosed the possibility that the U.S. Supreme Court will issue a broad decision favoring marriage equality anytime soon.
Of course, the decision by the 9th Circuit Court of Appeals was good news for same-sex couples in California. If the decision survives an appeal to the U.S. Supreme Court, then same-sex marriages might resume in that state within the next year.
But the implications for the decision outside of California are limited. The opinion, by Judge Stephen Reinhardt, is based on the narrowest possible grounds, substantially curtailing its potential for a national impact.
Reinhardt declined to rule in his opinion that same-sex couples have a fundamental right to marry or that homosexuality is a suspect class entitled to heightened protections under the 14th Amendment’s Equal Protection Clause.
Such an opinion would have immediately called into question the validity of same-sex marriage bans in other states such Arizona, Idaho and Montana, which are also covered by the 9th Circuit. The decision also could have led to the dismantling of same-sex marriage bans nationwide if the U.S. Supreme Court had adopted its central principle.
Instead, Reinhardt chose the more conservative route. The problem with Proposition 8, he wrote, was that same-sex couples were deprived of an existing right without a legitimate reason.
Unlike most other states that prohibit same-sex marriage, California provides identical benefits to same-sex and opposite-sex couples — the state had even described these unions as marriages before the approval of Proposition 8. All Proposition 8 accomplished was to remove the “marriage” label from same-sex partnerships, and according to the 9th Circuit, there was no rational reason for California voters to do so.
Left open is the question of whether states can deny same-sex couples all of the rights and privileges of marriage outright. As written, the opinion applies only to states such as California, which provide benefits to same-sex couples but refuse to classify them as marriages.
Also unclear are the implications for states such as New Jersey, which provide generous benefits for same-sex couples but never called these unions marriages.
Reinhardt’s opinion emphasizes the fact that same-sex unions in California had once been called marriages, but were reclassified. Same-sex unions have never been designated as marriages in New Jersey.
The opinion was probably a smart move strategically because the rationale is tailor-made to appeal to Anthony Kennedy, the swing justice on the U.S. Supreme Court. By taking the more cautious approach, Reinhardt has increased the probability that the U.S. Supreme Court will affirm the decision on appeal.
For supporters of same-sex marriage, however, the victory may prove to be a Pyrrhic one. If the U.S. Supreme Court accepts the 9th Circuit’s invitation to strike down Proposition 8 on narrow grounds, its ruling will mean nothing for the bans on same-sex marriage that are in place in other states. These prohibitions will remain in place.
To challenge them, litigants will need to bring other test cases to the federal courts, a process that could take years. Even then, there is no guarantee that the issue will ever make its way back to the Supreme Court or that the justices will side with supporters of marriage equality if it does get there.
Same-sex couples cannot count on a bailout from the federal courts.
Achieving marriage equality in New Jersey now depends on the state Legislature.
Robert J. Hume is an associate professor of political science at Fordham University: email@example.com.