02/07/2012 07:12 pm ET Updated Feb 02, 2016

Judge N. Randy Smith's Dissent in Today's Prop 8 Ruling: A Preview of Vacuous Arguments to Come?

While many people are celebrating the Ninth Circuit Court of Appeals ruling in the Prop 8 case, I'll take this opportunity to use my platform for the usual buzzkill for a while, since a stay of this decision is in place until at least the end of this month, meaning justice delayed is justice denied.

No surprise should exist that despite the well-written and narrowly approached opinion by the majority in today's Prop 8 decision by the Ninth Circuit Court of Appeals, Circuit Judge N. Randy Smith wrote a weak and ridiculous dissent that provides some preview of what may happen should this case reach the United States Supreme Court.

Smith is an appointee of George W. Bush and a 1977 graduate of Brigham Young University's (BYU's) J. Reuben Clark Law School. And Smith seemed to be following the lead of a current BYU law professor, Lynn Wardle, who not only teaches at Smith's alma mater but whose name also appears in the "Counsel Listing" on the Prop 8 case in his capacity with the anti-gay Marriage Law Project at BYU's law school. Professor Wardle is notorious for anti-gay rhetoric that includes comparing gay people with rapists, child molesters, and drunk drivers. Meanwhile, earlier this week, the CEO of the largest affiliated controlling shareholder of my law school made a video supporting equal marriage rights.

Following Professor Wardle's lead at his alma mater, Judge Smith gratuitously quoted Antonin Scalia's dissent in Lawrence v. Texas (in other words, Scalia's losing position in that case), the case that struck down all sodomy laws among consenting adults in the U.S., in Smith's Prop 8 dissent. Why? So Smith could copy Wardle's and Scalia's invective by comparing same-sex couples seeking to be married in California with people who engage in "adult incest ... [and] bestiality" as apparently similar "moral choices." But Smith's dissent transparently represents the same tired argument trotted out by social conservatives time and again for little more than the effect of sadly getting those canards into the dissenting opinion.

In addition, despite the Supreme Court's result in Lawrence, and despite the Court's holding in Romer v. Evans (the case that served as the underpinning for today's Ninth Circuit's Prop 8 decision), Judge Smith instead wanted to discuss a 1971 case, Baker v. Nelson, in his Prop 8 dissent. Why? Because in Baker, the U.S. Supreme Court denied a marriage license for a Minnesota gay couple. (While the 1970s may have been a great decade for some people, times have changed . And, more importantly, so has the law.) When the Court wrote the Baker opinion, and until 2001, sodomy laws were valid in Minnesota. Thus, a legitimate government reason arguably may have existed to deny marriage licenses for a committed gay couple, because that couple likely engaged in what was then-illegal sexual conduct. But Baker's relevance in this debate more or less disappeared in Minnesota in 2001, and several years later nationwide, when sodomy laws no longer applied to consenting adults. Adult lesbians and gay men are not criminals because they engage sexual conduct that was criminalized in the 1970s. Yet Smith's reliance on a 1970s case to buttress his analysis is grasping at straws (although probably unsurprising from a judge appointed by a president who believed that Harriet Miers was the more qualified to sit on the Supreme Court than Samuel Alito).

But beyond weakly attempting to distinguish Romer from the Ninth Circuit's well-written majority opinion (more on that in a minute), beyond attempting to inject language regarding incest and bestiality into a case involving marriage rights being taken away from lesbians and gay men, and beyond attempting to create an argument based on cases that simply have no bearing on the law and facts applicable to Prop 8 in front of the Ninth Circuit Court of Appeals, what did Judge Smith's dissent accomplish today?

Judge Smith's dissent showed us the degree of vacuous reasoning employed by those people and groups opposed to restoring the equal application of marriage rights to same-sex couples in California, should this case continue, either in an en banc hearing or at the U.S. Supreme Court.

Today's majority, however, stated that no legitimate state interest existed as a rational basis for Prop 8's constitutionality based on Romer. In Romer, no legitimate reason existed to take away previously held rights in Colorado from one group of people but not others.

The anti-gay-marriage faction offered four main potentially legitimate reasons (arguments) as to why Prop 8 may have existed in a constitutional manner:

  1. Furthering childrearing (a false proposition unaffected by Prop 8)
  2. Proceeding with caution before changing the definition of marriage (an insincere assertion, as 18,000 valid marriages already occurred in California)
  3. Protecting religious freedom (an argument unaffected by Prop 8 but begging the question -- and don't take it the wrong way -- "What about my religious freedom to have my ketubah mirror my civil legal rights under California law?")
  4. Preventing children from being taught about same-sex marriage in schools ("Schools teach about the world as it is; when the world changes, lessons change")

Smartly, in its discussion of what arguably objectionable material schools teach kids, the majority nicely inserted the dagger of "no-fault divorce" into the discussion. Why? Because even social and religious conservatives understand that the advent of no-fault divorce did far more to weaken the institution of marriage than recognizing marriage rights for gay and lesbian couples.

The majority wisely stated:

Prop 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of "marriage," which the state constitution had previously guaranteed them ... The name "marriage" signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.

And the Ninth Circuit majority underscored this point by stating, "We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries." That is, unless that couple is gay or lesbian and unless you're Judge N. Randy Smith or Professor Lynn Wardle.