The Ninth Circuit’s 2-1 decision last week in Perry v. Brown upheld the decision of Judge Vaughan Walker holding that the people of the State of California violated the Equal Protection Clause of the 14th Amendment by passing – in a statewide referendum in 2008 – Proposition 8. Prop 8 amended the California Constitution to define marriage as between one man and one woman, restoring the rule previously set forth in California statutory law until overturned by the California Supreme Court earlier in 2008. Prop 8 garnered over 7 million votes, two million more than John McCain in liberal California – it was the supported by 52.3% of the same electorate that broke 61-37 for Barack Obama, including 58% of black voters and 59% of Latino voters.

Despite some game efforts to meddle with the burden of proof based on the sequence of events, the core of the decision – written by veteran arch-liberal Judge Stephen Reinhardt – was the same as that of the district court: the assertion that there is no possible rational basis for distinguishing between traditional, opposite-sex marriage and same-sex marriage. More specifically, in the California context, the court found that the federal constitution gives federal judges the right to dictate the language itself, holding that California’s voters were not even permitted to reserve the term marriage to opposite-sex marriage while providing effectively all the practical state-law benefits of marriage to same-sex couples through “domestic partnership.”

There are arguments for and against same-sex marriage as a policy matter, but the argument for declaring that the Constitution mandates that only one set of those arguments be considered “rational” is itself irrational and intellectually indefensible. This is so not only because it begs the question by redefining the language and because it ignores basic biological reality, but most of all because the argument for striking down Proposition 8 treats history, culture, tradition and social convention inconsistently. It should not be taken seriously as constitutional law.

The Ninth Circuit panel majority reassures the reader that the distinction between opposite-sex and same-sex marriage “is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly.” Yet, like Judge Walker, the majority determined that no person of good will could have any rational reason for voting for Proposition 8. I detailed at greater length the flaws in Judge Walker’s original decision back in 2010; let’s hit the high points of why the case against Prop 8 is so intellectually shoddy.

Tradition for Me, Not For Thee

The core problem with the Ninth Circuit panel’s analysis, as with that of Judge Walker, is its inconsistent treatment of the role of tradition and culture. When it comes to finding that same-sex couples have been injured by being deprived of the use of the term “marriage,” the court waxes eloquent on the cultural status of the institution:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships.

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[W]e emphasize the extraordinary significance of the official designation of ‘marriage.’ That designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults…The word ‘marriage’ is singular in connoting “a harmony in living,” “a bilateral loyalty,” and “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” Griswold v. Connecticut, 381 U.S. 479, 486 (1965).

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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 regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths, and marriages. 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.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different. The name “marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.

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The incidents of marriage, standing alone, do not…convey the same governmental and societal recognition as does the designation of ‘marriage’ itself. 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.

All of this is unobjectionable – it accords with the view that the term “marriage” has value that comes from a longstanding social and cultural tradition, stretching back in fact much further even than Shakespeare. As Justice Holmes famously said, “The life of the law has not been logic; it has been experience.” Human experience gives meaning to words, or else we could not have a language that is commonly understood. The full quotation from the Supreme Court’s unanimous opinion in Griswold – including the portion not quoted by the Perry panel majority – makes precisely this point in finding that rights arising from marriage are derived from the institution’s age and traditional role and importance in society, and not from mere judicial syllogism:

Would we allow the police to search the sacred precincts of marital bedrooms for telltale signs of the use of contraceptives? The very idea is repulsive to the notions of privacy surrounding the marriage relationship.

We deal with a right of privacy older than the Bill of Rights — older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

But that whole history – and each and every cultural references cited by Judge Reinhardt – is a history of opposite-sex marriage. The long, hard work of establishing the meaning and value of marriage – earning that social and cultural “respect and dignity” that raises marriage to the level of a commitment “intimate to the degree of being sacred” in the eyes of society, from literature to film to church to law – has been done by uncounted millions of opposite-sex married couples over thousands and thousands of years. What the Perry plaintiffs want is to free ride on that effort, to be granted the social respect earned by a distinct relationship – and have the government enforce that by redefining the very language. The issue is not at all one of “live and let live,” but a demand for “state legitimization and societal recognition” enforced by the courts. Yet somehow, in ruling on that issue, the Perry panel majority puts the weight of such considerations on only one side of the scale.

Tradition, history, culture, social recognition: these things were good enough, not only for Justice Douglas in 1965, but for the Ninth Circuit panel majority itself in its own discussion of the reasons why the term “marriage” matters and has value – yet they suddenly become a thing that could have been given no rational weight when determining whether the state may continue to use the same word to mean the same thing it has meant throughout history. This cannot possibly be defended as law or logic.

If the term “marriage” is a thing of sufficient social and cultural value to give rise to a constitutional injury, then the source of that social and cultural value must be considered a rational basis for continuing to use the word to have the same meaning. It is no equal protection of the laws to say that the Perry plaintiffs may legitimately consider social and cultural status important, yet 7 million California voters may not.

The Birds and the Bees

Declaring opposite-sex and same-sex marriage to be identical also ignores the basic fundamental biological distinction between the sexes: it takes a man and a woman to make a baby. There is – as I have explained at much greater length here and here – an entirely rational basis for distinguishing as a class between opposite-sex and same-sex couples by virtue of the relationship between opposite-sex relations and the bearing and begetting of children. The Ninth Circuit majority waves this consideration away on the grounds that Prop 8 did not directly affect the right or ability of either type of couple to have or raise children. And admittedly, California law’s expansive domestic partnership and palimony laws have long failed to give much in the way of privileged legal status to traditional marriage. But again, the Perry panel majority fails to consider the common-sense point that maintaining some of the social and cultural respect unique to marriage (the very thing the panel majority just got done trumpeting in significance) is the very least thing the state can do to preserve the status of an institution that is so vital to raising the next generation.

Its relationship to having children is the aspect of marriage in which the state has the most obvious interest, and which justifies any state involvement at all. The state has a compelling – to the point of being existential – interest in encouraging the birth of children. This is especially true in a world of declining birth rates and an entitlement state whose demographic premises are rapidly eroding (and no American state is in as dire fiscal straits as California). Statistically speaking, opposite-sex couples produce nearly all the world’s children. Same-sex couples, even with the aid of modern technology, are highly unlikely to reproduce at even a replacement level. Disparities between the likelihood of the two groups to produce children are backed up by current Census data. Encouraging opposite-sex marriage in ways and to an extent different from same-sex couplings is an entirely rational way of pursuing this goal, and this is so even without conducting a more intrusive examination of whether particular couples of one type or another are willing or able to have children (or even know if they are, at the time they marry).

The state also has a compelling interest in encouraging opposite-sex couples to marry, precisely because unmarried opposite-sex couples may have children, and because of the superiority of raising children in a married rather than unmarried home (a point backed not only by common experience but by virtually all social science research ever) The state has no nearly similar interest in encouraging same-sex couples to do so – the number of gay single parents is vanishingly small and (not to state the obvious) includes essentially no unplanned pregnancies.

Perhaps one may argue that the state can, or should, offer more than (literally) a single word of encouragement for traditional marriage. But nothing in constitutional law requires that the state do every possible thing to achieve a goal in order to show that it has acted for a rational purpose.

Reading Is Fundamental

The plaintiffs in Perry have also argued that they were deprived of the “fundamental right to marry.” The court, wisely in my view, steered clear of this argument, which is a dishonest bait-and-switch for much the same reason.

The Constitution mentions no right to marry. The Supreme Court has recognized this right as being “fundamental” for essentially the reasons identified in Griswold – because it is a social institution older than the Bill of Rights itself, and which the Founding Fathers would not have thought to protect in the Bill of Rights solely because they did not anticipate the federal government tampering with it. That is, in fact, why we have a Ninth Amendment (“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people“): to protect against novel intrusions on rights long recognized and respected at common law. Rewriting the definition of “marry” to mean something significantly different from the word’s common law meaning would call into question the entire rationale for recognizing the right as fundamentally beyond the reach of the law in the first place. Constitutional law would get a lot more interesting if the ordinary meaning of words can be changed to fit within existing categories to place desired outcomes beyond the reach of the democratic process.

Here, Sir, The People Rule

We have written constitutions, enforceable by judges, for a reason. The Founding Fathers believed in natural law and natural rights – that is, in the notion that we are endowed by our Creator with certain rights that are inalienable, immune from the proper reach of the law. But they did not write the Constitution to give the judiciary a broad-ranging charter to determine what rights were God-given; they wrote down specific powers granted to particular organs of government and specific rights reserved to the people, and – by Article V – empowered We the People to change the Constitution by supermajority if the People felt that it required revision with the times (something the People have done 27 times so far).

Judicial review to strike down democratic enactments on the grounds that the People have placed certain things beyond the reach of legislation – such as the freedom of speech, free exercise of religion and prohibition on slavery – is essential and legitimate. It is the way in which the rule of popular sovereignty is enforced and enhanced, not degraded.

But when judges seek to decide what is “rational” or “fundamental” without any guidance from the text of the Constitution or the history of its enactment (two things conspicuous by their absence in Perry, as it would be laughable to suggest that the 14th Amendment addresses the definition of marriage or was understood at the time to do so), they are engaging in that open-ended exercise of what amounts to determining the will of God rather than of the People, and doing so without any particular reason to believe that they are more competent to the task than the electorate. The fact that rights are declared to be fundamental or decisions to be irrational on the basis of an avowedly secular set of principles does not make such a system of government meaningfully different in practice from theocracy or any other form of oligarchy, in which some questions are simply off-limits to the consent of the governed, to be interpreted only by a self-selecting elite. In a democracy, there are no such things as questions too important for the voters, only questions about what the voters have placed within and without the current sphere of their authority.

Absent text and history to guide them, what makes two judges (or one, or five) a better determinant of what is rational, or fundamental, than seven million Californians, drawn from all races, religions and walks of life? And why can’t those seven million Californians draw on things like experience, tradition, culture, and plain old common sense in making their decisions?

As I’ve written before, democracy, free markets, tradition and the rule of written law are all valuable for the same reason – they include the largest number of people in the making of decisions. Tradition protects us from the tyranny of small sample sizes, by delivering to us the lessons drawn from experience of prior generations. Tradition is not stasis; it is the gradual accrual of the lessons of trial and error of countless individuals. It changes when new things are proven to work, and old things are found to have become unuseful. In fact, you cannot believe in moral progress of any kind if you do not believe in tradition, only a sort of moral Brownian motion in which nothing learned today has any guarantee against being unlearned tomorrow.

But the myriad individual and social judgments that compose tradition are made by the common man (who is valuable precisely because he is so common), and far less reliable when made by a small and insular number of lawyers. Voters gave us the Bill of Rights; judges gave us Dred Scott. Indeed, if voters’ views of same-sex marriage change, as they have in some states, the law will change with them. But if we continue down the path of decisions like Perry, the voters of tomorrow may find little left they are permitted to decide. And that, far more even than the specific policy question at issue, is something worth getting upset about.