The Reinhardt Ratchet

The Reinhardt Ratchet: I recommend the Volokh Conspiracy bloggers for instant unpacking of Judge Stephen Reinhardt’s decision striking down California Prop. 8’s ban on same-sex marriages. Two initial thoughts: 1) Any decision based on the “rational relationship” test is almost certainly a crock. As a famous Yale Law Journal note by Robert F. Nagel argued decades ago, every statute is perfectly rationally related to … doing exactly what it does! When judges find that a statute has “no rational relationship” to a legitimate government purpose it usually means they’ve simply given rein to their biases and arbitrarily ruled out or ignored various conceivable purposes. Here, Orin Kerr argues, they ignored the blindingly obvious purpose of swatting down the California Supreme Court–which you might want to do if you support same sex marriage rights but think they should be instituted legislatively, with maximum “buy in” by the public. 2) Reinhardts’s ruling seems to say that after the California Supreme Court had required same-sex marriages, voters couldn’t reverse that decision without being motivated by impermissable animus. In other words, once state judges grant rights to a new discriminated-against class, it’s unconstitutional to take them away, even by amending the state constitution–a sort of Brezhnev doctrine of liberal judicial activism. …