Hurray! Proposition 8 is ruled unconstitutional!

Hurray!  Proposition 8 is ruled unconstitutional!

California again has reason to celebrate as the 9th Circuit Court of Appeals struck down Proposition 8 as unconstitutional.  This may seem like old news to gays in other states who enjoy the right to marriage, or civil unions and domestic partnerships that provide the same rights.  The celebration is sweet to those of us in California because of the turmoil that supporters of gay marriage have endured:  a voter-approved ban, legal fights over the right to marry, which seemed to support the right and then withdrew it, and then the loss of the  opportunity to marry that was later taken away.  One day we may all look back on these battles as strange in a society that claims to honor personal freedom and human rights. 

Supports of Proposition 8 may ask the 9th Circuit to rehear the case, conduct an en banc hearing (heard by 11 judges), or go directly to the U.S. Supreme Court.  The windows of opportunity changes according to the relief sought, but at least by the end of 90 days we will have our answer.

The Court's Opinion in Perry v. City and County of San Francisco is a whopping 128 pages long.  In the opinion written by Judge Reinhardt, he concludes Proposition 8 violates the Fourteenth Amendment of the U.S. Constitution.  While the Constitution allows communities to enact many desirable laws, they must at least have a "legitimate reason for the passage of a law that treats different classes of people differently."   The Court held there was no such reason for enacting Proposition 8:  it could not have been enacted to advance California's interests in childrearing or responsible procreation nor could it have any effect on religious freedom or on parents' rights to control their children's education.  Judge Reinhardt explained:

                "All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships.  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-six couples.  The Constitution simply does not apply for 'laws of this sort.'  Romer v. Evans, 517 U.S. 620, 633 (1996)."

(Opn., p. 5.)

Rather than making a broad ruling, the Court narrowly decided the issue, reasoning that Proposition 8 only took away the designation of "marriage" while "leaving in place all of its incidents."  (Opn., p. 6.)  It also limited the holding to California, which may make review by the U.S. Supreme Court less likely.

While acknowledging the official sponsors of Proposition 8 have standing to appeal the decision by the district court, the Court concluded "The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry."  (Opn., p. 7.)  It traced the development of laws relating to marriage, noting that California's Domestic Partner Act provides domestic partners with the same rights, protections, and benefits of married couples, only withholding  the official designation of "marriage."  In Marriage Cases, the California Supreme Court held that the fundamental right to marriage could not be denied to same-sex couples.  Then Proposition 8 came along, providing that only marriage between a man and woman was valid.   

In response to the publication of the Court's opinion, there were a flurry of newspaper reports and editorials.  In one editorial written by Dean Erwin Chemerinsky of the UC Irvine School of Law, he notes, "No doubt many are offended by the idea of same-six marriage.  But, of course, those who don't like the idea of same-sex marriage don't have to marry someone of the same sex."  (Los Angeles Times, Op-Ed, Feb. 8, 2012.)

You can find the decision, including the concurring/dissenting opinion of Judge Smith, here: http://www.ca9.uscourts.gov/datastore/general/2012/02/07/1016696com.pdf.