Legalistic Decision Tosses Prop 8 on Narrow California-Based Grounds
“Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couple alike,” the Ninth Circuit Court of Appeals began in what will be a landmark decision, marking the first time a federal circuit court has ruled in favor of equal rights for same sex couples.
“On that day,” the court continued, “the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United State Constitution. We conclude that it does.”
The court continues, “Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.”
The court went on to argue that under California’s statutory law, “Same-sex couples had all the rights of opposite-sex couple” regardless of their marital status, and thus, “Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State… the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.”
Judge Stephen Reinhardt, writing for the 2-1 majority, therefore argues that “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for ‘laws of this sort.’ “
And with that, the landmark ruling makes the California’s same-sex marriage ban unconstitutional, but stays the order, allowing the ban to remain in place while the proponents of Proposition 8 prepare to appeal.
Legal scholars argued that the narrow grounds of the ruling, which focused almost exclusively on California law and ignored the broader federal questions, may make it more difficult for the Supreme Court to rule on this matter.
Courtney Joslin, a UC Davis professor of law who co-authored an amicus brief, filed on behalf of 28 California family law professors in the litigation challenging Proposition 8, said on Tuesday, “One possible reaction to this opinion is that it is limited to the unique California history and because of that the court might feel that there’s less of a need to grant review.”
Columnist Dan Walters writes, “With liberal icon Stephen Reinhardt as its lead author, one might expect a three-judge appellate panel not only to strike down Proposition 8, California’s 2008 anti-gay marriage measure, but to declare a fundamental constitutional right for gays and lesbians to marry.”
“Had it done so, it likely would have invited another Supreme Court reversal,” Mr. Walters continued. “Instead, Reinhardt – showing uncharacteristic constraint – sidestepped the larger constitutional rights issue cited in the trial court ruling.”
Wrote the court, “We … need not and do not consider whether same-sex couples have a fundamental right to marry.”
Instead, they strike it down on much more narrow and legalistic grounds, Mr. Walters argues, “with words that seemed to be aimed at an audience of one – U.S. Supreme Court Justice Anthony Kennedy.”
He notes: “Tuesday’s ruling quoted extensively from a 1996 Kennedy-authored decree in Romer v. Evans, striking down an anti-gay rights ballot measure in Colorado as being unconstitutionally discriminatory. That decision was 6-3, but the Supreme Court has since evolved into a 4-4 tie between liberals and conservatives, with Kennedy often casting the decisive vote in contentious cases.”
Elizabeth Gill of the ACLU’s LGBT (Lesbian Gay Bisexual and Transgender) Project wrote, “The 9th Circuit is the first federal appellate court to rule that a marriage ban for same-sex couples is unconstitutional, and the decision is one for the history books as a watershed moment for LGBT equality.”
She argued that it is important to focus on a couple of key aspects of the ruling.
“First, the court really got what marriage is all about – and why it’s different from domestic partnerships,” Ms. Gill writes.
As the court found, “The designation is important because ‘marriage’ is the name that society gives to the relationship that matters most between two adults. 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 ‘registered domestic partnership’ does not.”
“The court also got that the reasons for Prop. 8 cited by its proponents – responsible procreation, protecting religious freedom, and preventing children from being taught about same-sex marriage in school – actually have nothing to do with Prop 8. When the court says that ‘simply taking away the designation of “marriage” …did not do any of things its Proponents now suggest were its purposes,’ the court means that, yes, the Yes on 8 folks lied to California voters,” she continued.
“For all its inspiring rhetoric, however, the Perry decision doesn’t decide marriage for everyone (even marriage for Californians is still subject to appeal and likely to end up before the U.S. Supreme Court),” she argues.
But then she points to the momentum generated by the work in other states, with marriage bills that are pending in Washington, Maryland and New Jersey; marriage will likely be on the ballot in Maine in November; and there are anti-gay marriage amendments proposed in Minnesota and North Carolina.
“The best thing we can do to support this case is to continue working for greater protections for LGBT families in as many additional states as possible,” said Elizabeth Gill, staff attorney for the LGBT Project at the ACLU of Northern California. “We’ll celebrate this ruling, and then put that momentum toward important battles we’re facing this year.”
Despite the perhaps legalistic and nuanced ruling, reaction was strong and overwhelmingly positive from marriage equality supporters.
“This is a wonderful victory not only for same-sex couples, but for everyone who values fairness and dignity for all families,” said James Esseks, director of the ACLU’s Lesbian Gay Bisexual and Transgender Project. “Same-sex couples want to marry for the same reasons others do – to make a solemn commitment to their partners and to protect their families. It’s cruel for any state to bar them from marriage, and today’s decision confirms that it’s unconstitutional as well.”
Attorney General Kamala Harris famously followed in the footsteps of her predecessor and refused to defend Proposition 8 in court – which triggered a lengthy discussion and ruling on standing that was cleared last month when the court allowed proponents to have standing to defend their own measures when the state apparatus refuses to.
“Today’s ruling is a victory for fairness, a victory for equality and a victory for justice,” said Attorney General Harris. “Proposition 8 denied to gay and lesbian couples the equal protection to which all Americans are entitled. By striking this unconstitutional law from our books, the court has restored dignity, equality and respect to all Californians.”
Governor Brown, who refused to defend Prop. 8 both as Attorney General and Governor said simply, “The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision.”
“Today, California is significantly closer to the basic civil right of marriage equality. Like all other civil rights struggles in our history, the work is never done. Every big step forward is a step closer to eliminating discrimination in our society,” Senate President pro Tempore Darrell Steinberg said on Tuesday. “My hope is that any justices considering a potential appeal will exhibit the same level of courage we have seen today.”
Senator Leland Yee commended the decision by the the Ninth Circuit Court of Appeals stating, “Today’s 9th Circuit decision is another step forward in healing the wounds of government-sanctioned discrimination. It is long overdue for all loving relationships to be recognized and all families to be provided with the same rights, privileges and joys of marriage.”
“By declaring Proposition 8 unconstitutional, the Court reaffirmed the highest ideals of our republic. For far too long, our nation has unfairly denied fundamental rights to individuals on the basis of sexual orientation – clearly violating the equal protection doctrine in our state and federal Constitutions,” the Senator continued. “I look forward to the day when we can finally put aside these antiquated legal battles and start honoring all individuals based on the content of their character.”
Yolo County Clerk Freddie Oakley, whose office has been in the spotlight on this issue due in part to her activism on behalf of same-sex couples, told the Vanguard on Tuesday, “I think it is important to understand that the 9th Circuit Court of Appeals, in upholding the lower court’s decision, found that Prop. 8 is unconstitutional because it deprives a specific group of people of an existing right, thus denying them the equal protection afforded by the 14th amendment of the U.S. Constitution.”
She added, “I certainly hate to think it would ever be acceptable to remove a right from a class of persons.”
“I am a committed, serious-minded, Christian woman and I think: What if the people of California passed a Constitutional amendment depriving Presbyterians of our existing right to call ourselves a church? Would that be OK? Even if we could still get together and make a joyful noise and pray? To me, it would make a difference.”
“So, thank you, 9th Circuit, for emphasizing the importance of protecting our rights. All of us. All our rights,” she said but added more bleakly, “On the other hand, I still don’t know when I’ll be able to uphold a better marriage law than the one I am sworn to uphold, and do uphold. It seems like there is always more work to be done.”
And that was the message of the day – it was a victory for those who support marriage rights, but it was not the end of the story and there is more work to be done.
As Assemblymember Mariko Yamada put it in a statement on Facebook: “The Reverend Dr. Martin Luther King, Jr. said, “The arc of the moral universe is long, but it bends towards justice.”
She added, “Today, the 9th Circuit Court of Appeals has reaffirmed that belief.”
—David M. Greenwald reporting