Perry Poses Problems for Same-Sex Marriage Advocates Commentary
Perry Poses Problems for Same-Sex Marriage Advocates
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JURIST Guest Columnist Kevin Snider, Chief Counsel for the Pacific Justice Institute says that the Ninth Circuit panel in Perry v. Brown unanimously acknowledged that a right to same-sex marriage is not supported by Supreme Court or Ninth Circuit precedent, and that sexual orientation is not a suspect classification according to longstanding case law…

Lost in the respective euphoria and postmortems over the decision of the US Court of Appeals for the Ninth Circuit on Proposition 8 in Perry v. Brown is the importance of the unanimous agreement by the court on two fundamental issues. I pose them as questions: 1. Is there a constitutional right to same-sex marriage? 2. Is sexual orientation — in this case homosexuality — a suspect classification?

Is There a Constitutional Right to Same-Sex Marriage?

Writing for himself and Judge Hawkins, Judge Reinhardt states near the outset what the opinion will not attempt to resolve: “Whether under the Constitution same-sex couples may ever be denied the right to marry … is an important and highly controversial question … We need not and do not answer the broader question in this case.” Instead, the majority ruled on the narrower grounds that once a state provides a right it cannot take it away. Although that position, stated as an absolute proposition, is an error, this submission will narrowly focus on the two questions stated above.

The majority stated clearly that no fundamental right was at issue. Citing Romer v. Evans, the court asserted that if a law does not “burden a fundamental right” the provision will be upheld if it is rationally related to a legitimate end. From that premise the court found that Proposition 8 did not involve such a right, stating succinctly, that “[s]uch was the case in Romer and it is the case here as well.” Not surprisingly, the dissenter, Judge Smith, agreed. Citing Lawrence v. Texas, Judge Smith wrote that “The United States Supreme Court has not recognized that the fundamental right to marry includes a fundamental right to gay marriage.”

As noted by both the majority and dissent, this issue has already been before the Supreme Court in Baker v. Nelson. Hence, a federal court of appeals lacks the legal capacity to find a right to same-sex marriage under the US Constitution. It is important to look at the context in which same-sex marriage was handled by the justices of the Supreme Court.

Baker was a case that came from the Minnesota Supreme Court where the US Supreme Court reviewed a denial of a marriage license to two male applicants. The same-sex couple brought a claim under the Equal Protection Clause of the Fourteenth Amendment. Their arguments proved to be a precursor to the same-sex marriage and benefits cases that would be brought in the decades that follow up to and including Perry.

The core thesis espoused by the same-sex couple was as follows: “the right to marry without regard to the sex of the parties is a fundamental right of all persons and that restricting marriage to only couples of the opposite sex is irrational and invidiously discriminatory.” However, the Minnesota Supreme Court rejected this argument stating: “We are not independently persuaded by these contentions and do not find support for them in any decisions of the US Supreme Court.” The court further opined: “The equal protection clause of the Fourteenth Amendment, like the due process clause, is not offended by the state’s classification of persons authorized to marry. There is no irrational or invidious discrimination.” Hence, Minnesota’s high court, using rational basis analysis, determined that there was no violation of the Equal Protection Clause in reviewing classifications based upon sexual orientation.

Subsequent to that decision, the same-sex couple exercised their rights to the mandatory appeal procedure to the US Supreme Court available at the time. The Court issued a summary affirmance of the decision. Under the procedures of the time, such was a decision on the merits. As a result (as Mandel v. Bradley affirms), lower courts cannot come to “opposite conclusions on the precise issues presented and necessarily decided by those actions.” In view of this rule of law, it is not surprising that the one other federal court of appeals confronting the issue of same-sex marriage, the US Court of Appeals for the Eight Circuit in Citizens for Equal Protection v. Bruning, cited among its authorities the summary affirmance in Baker.

In sum, had the Ninth Circuit decided to directly answer the question as to whether same-sex marriage is a fundamental right, the Court would have been obliged to follow Baker. Stated simply, the panel could not have found a constitutional right to same-sex marriage.

Is Sexual Orientation a Suspect Classification?

The authors of both the majority and dissenting opinions also found themselves in agreement on the threshold issue of whether sexual orientation is a suspect classification. Again citing Romer, Judge Reinhardt wrote that “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification.” He then noted that the present case fit that description. Judge Smith agreed, writing that “Proposition 8 does not involve such a suspect classification.” Of course, the Supreme Court’s position that sexual orientation (defined in Romer as “homosexual, bisexual or lesbian”) is not a suspect class is dispositive.

However, even if Romer could feasibly be construed to not speak to this issue — an implausible position — the members of the panel had little choice in coming to the conclusion that “[g]ays and lesbians are not a suspect or quasi-suspect class.” This has been the law in the Ninth Circuit for 30 years, as established in Adams v. Howerton. Due to the Adams decision, the Perry court, as a three-judge panel, lacked the authority to overrule a circuit precedent, for, as Robbins v. Carey asserts, “that power is reserved to the circuit court sitting en banc.” Further, Adams was not an anomaly in the Ninth Circuit. Three other panels on the circuit came to the same conclusion in High Tech Gays v. Defense Industrial Security Clearance Office, Holmes v. California Army National Guard and Flores v. Morgan Hill Unified School District.

This line of cases does not represent another Ninth Circuit aberration from orthodoxy, for which there have been many. Nine other circuits, covering 12 opinions over the span of more than 25 years, have come to the same conclusion that homosexuals are not a suspect class. Indeed, to date no circuit has come to a contrary conclusion. Because homosexuals do not belong to a suspect class, a sexual orientation claim will receive rational basis review.

The Perry court did not and could not elevate sexual orientation to the same plane as that reserved for race or religion. This is as it should be. By extension, the Ninth Circuit was not at liberty to find a right to same-sex marriage under the Fourteenth Amendment’s Equal Protection Clause. Unless the Supreme Court abandons the logic of its own precedents, those who celebrate traditional marriage have reason to be optimistic when Perry comes before the Court.

Kevin Snider is the Chief Counsel at the Pacific Justice Institute. His areas of expertise include constitutional law and civil rights issues, and he is a frequent presenter at various seminars on church law and religious liberties.

Suggested citation: Kevin Snider, Perry Poses Problems for Same-Sex Marriage Advocates, JURIST – Hotline, Feb. 16, 2012,

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