Prop 8 Is Unconstitutional

"Groucho Marx's one-liner, 'Marriage is a wonderful institution . . . but who wants to live in an institution?' would lack its punch if the word marriage were replaced with [domestic parnership]." Perry v. Brown

Proposition 8, a California voter initiative which passed in 2008, amended the state constitution to prohibit  same sex couples from getting married.  In 2010, U.S. District Court Judge Vaughn Walker ruled that the law was unconstitutional. In a fact-based decision, he held that  “Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license.”

Today, the United States Court of Appeal for the Ninth Circuit upheld Judge Walker's ruling.  In a 2-1 decision written by one of my heroes, Stephen Reinhardt, the Court ruled that the law “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."

Other highlights of the the 128-page ruling:

– All 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 legitimation and social recognition of their committed relationships.

– 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.

– That designation [of marriage] 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 of ‘registered domestic partnership’ does not.

– A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more “unprecedented” and “unusual” than a law that imposes broader changes, and raises an even stronger “interference that the disadvantage imposed is born of animosity toward the class of persons affected.”

From SCOTUSblog:

The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens.  The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court.  Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults.  That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.

The decision was narrowly circumscribed and specifically avoided drawing any "grand constitutional right to marriage," the New York Times noted, and instead referred to "California law and its handling of the rights of domestic partnerships, in a way that might make it difficult to extend the logic of the ruling to other states."  Thus, as Lyle Denniston at SCOTUSblog writes, "by fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court."  However, "because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life."

Supporters of the measure can seek rehearing en banc before an 11-judge panel of the Ninth Circuit or bypass that step and file for review in the United States Supreme Court.