N. Randy Smith has some very confusing legal arguments for Proposition 8. Plus he lives in Pocatello!
by Jamie Hale
The U.S. 9th Circuit Court of Appeals struck down California’s controversial Proposition 8 today, calling the anti-gay marriage amendment unconstitutional. The decision came in a 2-1 decision that has marked a milestone for gay rights groups, and has put another stone in the shoes of supporters of the ban. In the hours since the decision, people have been poring over the finer points of the decision, and one interesting fact came back to light: The one dissenting judge is Judge N.R. Smith, a current resident of Pocatello, Idaho.
While Idaho political types tend to be unrelentingly conservative, those from Pocatello are often a little more liberal-leaning. So how would Smith argue for the gay marriage ban that his colleagues so vehemently opposed?
In his dissenting opinion, Smith used many older court cases to craft an argument that basically allows Proposition 8 to hold based on “legitimate state interests” in barring gay marriage. He argues that of the several arguments for the proposition, one in particular, the “optimal parenting rationale” can be used as a governmental interest.
This rationale is the classic argument that biological, heterosexual parents are the best suited to raise a child. That rationale has already been rejected by California legislators, but Smith argues that a change in law proposed by residents should be able to circumvent all that:
“Even if California’s legislature previously rejected the optimal parenting rationale in its parenting laws (and Proposition 8 is inconsistent with its statutory scheme), that does not prevent the people of California from adopting Proposition 8 under that rationale.”
He also argues that, based on the arguments presented by both plaintiffs and proponents in the case, that the question of whether or not heterosexual parents are best to raise children is “debatable.” That’s enough to let it stand, he said.
But wait, gay rights activists say, the whole crux of Proposition 8 is that one segment of the population should have fewer constitutional rights than another. Isn’t that enough to shoot it down? Not so fast, argues Smith. While Proposition 8 takes away the right of same-sex couples to be “married,” it doesn’t actually strip them of any rights, he said. They can still enter into a civil union and adopt children, so the proposition strips them of title only—something that isn’t guaranteed by the constitution.
But what about the plain and simple discrimination? The fact that the law is simply unfair to one segment of the population? On that note, Smith quotes the 1961 case McGowan v. Maryland:
“’The Court has held that the Fourteenth Amendment permits States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others … State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality.’”
So what Smith’s argument comes down to is that first of all, previous court cases (as old as the latter-part of the 19th century) give precedence that allow Proposition 8 to hold water. Furthermore, the slightest technicalities (in his opinion) allow it to be deemed constitutional. In other words, Proposition 8 is OK because of a lot of legal mumbo jumbo.
While none of that really matters (since the other two judges struck down Proposition 8), the judge from Pocatello still offered an official opinion that could be used in arguments from judges in the future. So, in very some small way, Pocatello is now on the map in the ongoing legal debate about gay marriage. Who knew?
Here’s a link to the entire opinion, including Smith’s dissenting opinion.