Perry v. Brown v. Cohen

Introduction

Legal Concepts

The Perry majority frames the question they have been asked to decide as follows:

"[Did] the People of California have legitimate reasons for enacting a constitutional amendment that serves only to take away from same-sex couples the right to have their lifelong relationships dignified by the official status of 'marriage,' and to compel the State ...to substitute the label of 'domestic partnership' for their relationships?" (1615).

In this framing, the crucial word seems to be "legitimate." When Cohen describes a court's approach to determining "actual value," he points out that "[t]he actual value of a utility's property, then, is a function of the court's decision, and the court's decision cannot be based in fact upon the actual value of the property." (Cohen, 818). The idea of "legitimacy" in Perry v. Brown is a similarly circular legal conclusion; whether or not there was a legitimate reason for enacting Proposition 8 is a function of whether or not the court finds that there was.

The dissenting judge frames his reasoning in equally self-referential terms, stating that he is "not convinced that Proposition 8 lacks a rational relationship to legitimate state interests." (1673). Here, the keyword "legitimate" is modified by equally unhelpful "state interests." The primary issue supporters of Proposition 8 identified as a "state interest" was that of procreation and childrearing. It's hard for me to see what about this topic is inherently part of a state's interest; the kinds of arguments that justify such a connection seem to me to justify almost any activity as a matter of "state interest." In any case, there is no extra-legal practical definition of "state interests," it is again a legal conclusion reached by courts when courts think it should be reached.

Is the goal in these two grafs to forget any Fourteenth Amendment law you know, to avoid learning any, or to indicate that it is transcendental nonsense so that it doesn't matter whether you learn it or forget it?

The dissent here mentions the "rational basis" test, the default level of scrutiny employed by courts in due process and equal protection cases. This raises another host of transcendental nonsense concerns. The first is the decision to apply rational basis review, rather than intermediate or strict scrutiny. "Proposition 8 is a classification neither involving fundamental rights nor proceeding along suspect lines . . . [so] I do not address the application of strict scrutiny review." (1651). Why isn't marriage a fundamental right, despite the fact that the Supreme Court stated that "[m]arriage is one of the basic civil rights of man, fundamental to our very existence and survival" while striking down anti-miscegenation statutes? Loving v. Virginia, 87 S.Ct. 1817, 1824 (1967).

Why cite the case to the unofficial reporter? Because Westlaw prefers to take you away from the US Reports? Why don't you link directly to the opinion online, so people can read it? Did you? It would have answered the rhetorical question you asked, and given you some further basis to understand the legal analysis in the case you are supposedly trying to grasp.

Because the judge here says so. A suspect class is loosely defined as a minority group which has been purposefully discriminated against because of an immutable characteristic (religion is included, raising questions about the definition of immutability). Why are homosexuals not a suspect class? Because the judge here says so.

Perhaps because the Supreme Court has not said so? You have neither reviewed the law concerning the definition of suspect classes nor explained why the Court of Appeals, well aware that the Supreme Court has declined repeated opportunities to rule on the question, should have done so.

Even if the decision to choose "rational basis" review could be defended in real-world terms, we would not have advanced very far in our battle against transcendental nonsense. We would have to investigate more legal conclusions: whether or not Proposition 8 was "reasonably" related to, again, a "legitimate state interest."

Given that "marriage" itself is transcendental nonsense in the same sense you're using it here, what battle against transcendental nonsense could we be fighting? If you're really going to apply the approach you seem to think you're endorsing here, the case isn't about anything and doesn't have any meaning no matter which way it comes out.

Words are what they do

I was reminded of the discussion regarding the PPACA and whether there is a meaningful difference between calling something a "penalty" or a "tax." In Perry v. Brown, even the majority recognized that those with "domestic partnerships" in California were entitled to "rights and responsibilities that are identical to those of married spouses . . . ." (1610). At first glance, this may seem like an analogy for the penalty/tax argument, a matter of mere semantics. However, the word "marriage" has a unique place in our society, and the majority included a 300-word paragraph detailing this fact (page 1613). You can read a short blog post that includes the relevant paragraph here.

If you need the quotation, why not point at it in the opinion? If you don't need it, why are you sending your reader to some random person's blog? Why did you need to cite another complex case you're going to discuss in order not to discuss the reasoning about why "marriage" isn't transcendental nonsense within the borders of an opinion you're dismissing on that ground anyway?

Similarly, the supporters of Proposition 8 argued that there was no difference between the rights of homosexuals before In re Marriage Cases, 43 Cal.4th 757 (Cal 2008) and after Proposition 8 passed. Only in the intervening six month period were homosexuals able to marry in California. Not even the majority claims that states are constitutionally required to extend marriage to homosexual couples, and the supporters of Prop 8 argue that there is no difference between not extending the right to marry and revoking the right to marry. Just as the majority argued above that there is unique symbolism to the word "marriage," here they argued that there is symbolic importance to the act of revoking the right to marry. I agree that a state’s active revocation of a certain group’s rights puts an official stamp on discrimination.

In which case, why not go further and argue that doing so creates a suspect class where there was none before? See my brief with Pam Karlan in Romer v. Evans.

Judges are people, too

Publication or not, we know that the majority was written by Judge Reinhardt and Judge Hawkins, nominated by Jimmy Carter and Bill Clinton, respectively. Judge Smith, who dissented, was nominated by George W. Bush. "According to the classical theory, these things have nothing to do with the way courts decide cases." (Cohen, 846). Even in a functionalist model, such facts are not necessarily determinative. After all, Proposition 8 was first struck down in district court by Judge Walker, who was originally nominated by Ronald Reagan and then re-nominated by George H. W. Bush. Still, the fact that the opinion in Perry v. Brown is basically premised on self-referential legal conclusions makes me wonder what role human biases played in the determination of those conclusions.

-- By MarcLegrand - 13 Feb 2012

I don't understand this draft. The use of Cohen seems to be primarily to make it unnecessary to understand the law you're trying to learn something about. You don't make it easier for the reader to understand the case, you distract yourself into making some minor errors or omissions of your own, and when it's over we don't seem to know anything about what happened that we didn't know before.

Why not try another draft that presents an idea of yours about the opinions, and which also involves actually explaining what legal issues the court thinks it's deciding and how it decides them?