The significance of Judge Smith’s dissent in the Prop 8 decision

There was much in the ruling today to be happy about, like this money quote:

We do not celebrate when 2 people merge their bank accounts; we celebrate when a couple marries.

However, Judge Smith’s dissent concerns me, and I want to share some preliminary thoughts about it (emphasis on preliminary).

The decision today was a 2-1 decision. As anticipated, Judges Reinhardt (Carter-appointed and very liberal) and Hawkins (Clinton-appointed) went our way. Judge Smith did not. Smith is a George W. Bush appointee who was chairman of Idaho’s Republican party before winding up on the 9th Circuit. Smith was by far the most conservative member of the panel. So it is not all that surprising that he was not with us.

However, the inability to bring Smith on board is concerning for me. To understand why, one has to understand that the court issued a narrow ruling that was limited to the peculiar circumstances of California. I welcomed this, because I belong squarely in the camp that thinks that asking the Supremes to make same-sex marriage the law for the entire country at this juncture is a bridge too far. The narrower position that the court took is stronger. The court essentially said that regardless of whether same-sex couples have a due process right to marriage across the board, the situation in California is unconstitutional, because that right was granted and then taken away without good reason.

After watching the hearing, I thought there was a chance Smith might get on board with a narrow ruling and I hoped he would. A unanimous ruling with the support of such a conservative justice would have shown that the issue has the potential to transcend the nasty ideological divide on the court.

But the two more liberal justices didn’t persuade him.

Smith’s dissent was weak. In it, he gave some credence to two of the anti-marriage equality side’s bases for upholding Prop 8: (1) the “optimal parenting” basis, whereby the proponents of prop 8 argued that opposite sex parenting was optimal and the state has a rational basis for encouraging that through marriage; and‎(2) the “accidental parenting” theory, whereby opp sex couples can conceive accidentally, and same-sex couples can’t, so it’s supposedly rational to encourage accidental parenting within the bonds of marriage, and there’s no need to offer marriage to same-sex couples.

Now, I will have to check whether rationale number (1) was factually refuted at the trial, but I think it was. In any case, I know of no legitimate study that shows opposite sex parents are better parents than same-sex. But Smith’s dissent ignored the factual situation and seemed to say it’s enough if the government thinks its justification is rational. That’s a head-scratcher for me. Moreover, the state does not prevent other couples who cannot conceive from marrying.

Rationale number (2) also seems like a very limited and tenuous basis upon which the state supposedly provides marriage rights. Again, the government does not restrict couples who cannot conceive from marrying. So this rationale would seem extremely overbroad on its face. Smith ignored that.

Finally, Smith did not even say that these were rational bases on which to deny same-sex couples marriage rights. Instead, he said these might be rational bases, and that’s enough. Smith’s reasoning seems incredibly weak.

The very weakness of his justification worries me. Now, the Supreme Court has done some good civil rights decisions, but they’ve also done some terrible ones — Korematsu (Japanese internment, for instance) and Bowers (upholding sodomy statutes). So Smith’s dissent illustrates a danger. It just goes to show you that some judges will grasp at straws to justify doing the wrong thing. And in this polarized, ideological climate, that worries me if this goes to the Supremes.


Liz Newcomb is an attorney by day and committed LGBT activist by night and weekend. She has worked as a researcher at the Williams Institute. While in law school at UCLA, she was Articles Editor of the LGBT law journal. Liz lives in West Hollywood with her wife, Lynne. They are one of the 18,000 California same-sex couples who got married during the summer before proposition 8 passed. Liz has lived in California for over 20 years and brings a left coast perspective to AMERICAblog.

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