April 2, 2018 at 9:57 am PDT | by Jon Davidson
Judge Reinhardt’s legacy of love and justice

Judge Stephen Reinhardt

Judge Stephen Reinhardt, who sat on the United States Court of Appeals for the Ninth Circuit for more than 37 years, passed away March 29 of a heart attack, at the age of 87. Frequently referred to as the “liberal lion” of the federal circuit courts, he worked tirelessly till his last day to protect those without privilege or clout. Among those he spoke up for were immigrants, women, the terminally ill, victims of police brutality, dissidents from political and religious orthodoxy, and people who have been incarcerated or charged with criminal activity.

Those in the LGBT community will long remember Judge Reinhardt fondly for his fierce defense of the rights of same-sex couples.

In 2009, Judge Reinhardt decided in In re Levenson that Ninth Circuit public defenders could not be denied employment benefits covering their lawfully-married, same-sex spouses. Presaging the Supreme Court’s ruling four years later in United States v. Windsor, Judge Reinhardt concluded that there was not even a rational basis for the Defense of Marriage Act’s attempt to exclude married same-sex couples from protections and rights afforded those allowed to marry.

In 2012, Judge Reinhardt wrote the Ninth Circuit’s politically-savvy opinion in Perry v. Brown, which affirmed the lower court’s decision holding California’s Proposition 8 unconstitutional. The Supreme Court subsequently vacated that appellate decision, holding that the Prop 8’s opponents had no right to appeal the trial court’s ruling, but Judge Reinhardt’s opinion still shines with insight and humanity. He saw that, because California extended all the rights it afforded married couples to same-sex couples who registered as domestic partners, the only point of Prop 8 was to deny same-sex couples the “status and dignity” of marriage.

“That designation is important,” he wrote. “A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of `registered domestic partnership’ does not.” Adding a litany of cultural references to marriage, he quipped, “Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”

Because Prop 8 furthered no legitimate government objective and was only an expression of the majority’s view of same-sex relationships as less worthy than their own, it violated the Constitution’s guarantee of equality for all.

Two years later, Judge Reinhardt wrote the majority opinion in Latta v. Otter, striking down both Nevada’s and Idaho’s exclusions of same-sex couples from marriage, again on equal protection grounds. Leading the way for the Supreme Court’s subsequent decision in Obergefell v. Hodges, Judge Reinhardt added a separate concurrence to explain why the exclusion also violated the fundamental right to marry. That concurrence movingly ends,

“We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.”

As co-counsel in the Nevada marriage case, I feel a special tie to Judge Reinhardt. I also was fortunate to have met him on numerous occasions, as he was married to Ramona Ripston, the former Executive Director of the ACLU of Southern California, where I worked for 7 years. Their love and dedication to both one another and to social justice was an inspiration I long have carried with me.

I was hardly alone. Many of his former law clerks went on to leading roles in the progressive legal community, academia, and politics, including (to name but a few) Tom Saenz, the Executive Director of MALDEF; Hector Villagra, the Executive Director of the ACLU of Southern California; Yale Law School Dean Heather Gerken; former Massachusetts Governor Deval Patrick; and Joshua Matz, the publisher of the influential Take Care legal blog.

Nick Tarasen, one of a number of openly LGBT law clerks and externs Judge Reinhardt had over the years, who I worked with in challenging North Carolina’s infamous HB 2, said of his former boss and mentor, “His legacy lives on in lives made better, law made more fair, and a sea of law clerks inspired by his tireless example to make the world a better place. His is the voice inside my head telling me to be a ruthlessly clever lawyer in the service of justice, and reminding me — in dark times such as these — that we should know hope, and carry on the fight.” I know the judge would smile at that legacy.

Jon W. Davidson has been a leading LGBT legal rights advocate and constitutional scholar for more than 30 years. He recently stepped down as the national legal director of Lambda Legal.

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