As expected, a majority of the three-judge panel of the U.S. Circuit Court of Appeals on Feb. 7 upheld the U.S. District Court decision that struck down Proposition 8 (which affirmed that marriage is a relationship between a man and a woman) as unconstitutional. To reach this verdict, the circuit court engaged in legal sophistry but also a post-appeal strategy.

Justice Stephen Reinhardt, writing for the majority, actually treated the California Supreme Court decision which originally invalidated Proposition 22 (which preceded Proposition 8) as settled law, which, in its overturning, Proposition 8 unconstitutionally challenged!

In other words, once the "right" of gays and lesbians to marry was invented by the state's highest tribunal, notwithstanding the clear wishes of a majority of California, there is no turning back! Forget that for millennia, and everywhere, and in California by statute in 1977 and 2000, marriage was understood to be for opposite sexes. Progressives have spoken!

The legal sophistry by which this brazen conclusion was reached has been employed at least twice before. Like the State Supreme Court in 1965 with Proposition 14 (which repealed the Rumford Fair Housing Act) and the U.S. Supreme Court in 1996 with Amendment 2 in Colorado (which repealed local "gay rights" ordinances), the appeals court held that changing public policy when it singles out an identifiable group is unfair discrimination.

This strikes directly at the right of the people to govern themselves. In our free and democratic politics, political parties move from majority to minority and back again, and sometimes policies change. As long as we are governed by the consent of the governed, these shifts are inevitable. But if they are not permitted, "the people have," to quote Abraham Lincoln in reference to the infamous Dred Scott decision that denied the power of Congress to ban slavery from federal territories, "cease[d] to be their own rulers."

Even though there is nothing in existing constitutional law which grants gays and lesbians the same status as members of racial minorities, the appeals court acted as it that was the case. To this end, it relies upon the questionable notion of "adverse impact."

Thus, the court concludes that "there is no legitimate reason" for Proposition 8 other than to lessen the status and human dignity of gays and lesbians. This turns the rule of law on its head, which is no respecter of persons, meaning that the same rule governs everyone without singling out anyone for special consideration.

The court's questionable reasoning relies on a Supreme Court precedent, and on the Justice who wrote the opinion (that would be Anthony Kennedy). In Romer v. Evans, referenced above, the Court struck down Colorado voters' ban on "gay rights" ordinances on the same "adverse impact" rationale now employed by the appeals court. Indeed, Justice Reinhardt goes to great lengths to align his opinion with Kennedy's opinion. In both cases, the claim is made that the disparate treatment of certain groups is a violation of the equal protection clause of the Fourteenth Amendment to the U.S. Constitution.

Fortunately, Justice N.R. Smith in dissent has done his homework and, besides rejecting the arguments for adverse impact and disparate treatment of gays and lesbians, cites the U.S. Supreme Court case of Baker v. Nelson (1971). In that Minnesota case, the high Court ruled against two men who were denied a marriage license because there was no substantial federal question involved, and the denial was not a violation of the U.S. equal protection clause.

Moreover, the U.S. Supreme Court, Justice Smith said, has not recognized the right of gays and lesbians to marry and sexual orientation is not a "suspect classification" requiring "heightened judicial solicitude." Indeed, under our federal Constitution, state governments are free to "regulate morals," whether or not empirical evidence can be adduced in support of that regulation.

Proposition 8 proponents, according to Justice Smith, may legitimately cite the parental rationale according to which only men and women may produce children whether they plan on it or not, justifying marriage as an institution for children's legitimization and protection. The traditional "rational basis" for state legislation is satisfied even if there is no "perfect fit" between the means employed and the end sought.

In a fitting conclusion, the dissent reminds the appeals court that judicial review should respect legislative judgment (in this case, the people's legislative judgment) that traditional marriage does not violate the Constitution.

Richard Reeb taught political science, philosophy and journalism at Barstow College from 1970 to 2003. He is the author of " Taking Journalism Seriously: 'Objectivity' as a Partisan Cause"  (University Press of America, 1999). He can be contacted at