Same-Sex Marriage Supporters Celebrate as Contentious Proposition 8 Struck Down in US District Court

The blogosphere is buzzing after last week’s announcement that a California judge had struck down the contentious Proposition 8, stating that the constitutional amendment violated the 14th Amendment of the Constitution of the United States.  The decision is a major step forward for proponents of same-sex marriage.  Likely to end up at the U.S. Supreme Court, Proposition 8 reignites the debate regarding the delicate balance between democracy and individual rights.

A Brief History of Proposition 8

Before launching into a legal analysis, a quick outline of the proceedings leading up to the decision may be helpful.

Proposition 8 was included on the ballot during the November 2008 state elections and allowed voters to decide whether a constitutional amendment should be implemented stating that “only marriage between a man and a woman is valid or recognized in California.”  Despite many pre-election legal challenges, Proposition 8 made it onto the 2008 ballot and passed with a simple majority of 52.24%.

Several lawsuits were soon launched in both the State Supreme Court and the Federal District Court.  The case in question, Perry v. Schwarzenegger (No C 09-2292) in the U.S. District Court, was launched by two same-sex couples.   On August 4, 2010 Vaughn R. Walker C.J. of the U.S. District Court overturned the proposition, temporarily staying the case to allow suspension of his ruling pending appeal.

The Legal Framework

In part, the lawsuit contended that restricting the definition of marriage to a union between a man and a woman violated both the due process and equal protection clauses of the 14th Amendment of the US Constitution.  Most of the relevant case law is concerned with due process and thus is the focus of my analysis.  

The due process clause (Section 1) of the 14th Amendment states, “…nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”  In a nutshell, the due process clause ensures all citizens receive an equal, fair and clear application of the law.  Additionally, substantive due process considers the reasons why a law is enforced.  If an unreasonable law is passed, substantive due process may render it unconstitutional. 

In his analysis, Walker C.J. deemed marriage to be a fundamental right available to all and found Proposition 8 to be a violation of substantive due process.  By referencing multiple precedential cases, he set out a strong case for ruling Proposition 8 unconstitutional.

The “Strict Scrutiny” Test

Under the US Constitution, a violation of a right must withstand “strict scrutiny” (similar to Canada’s section 1 of the Charter).  Since this weblog is Canadian, I have taken the liberty of outlining the similarities of this American equivalent to the Oakes Test in my analysis.

First, the use of “strict scrutiny” means the government must demonstrate a compelling interest (our “pressing and substantial” requirement).  Next, the intrusion must be narrowly tailored to support the compelling interest (similar to the Canadian “rational connection” requirement).  Further, the impugned provision must be the least-restrictive means of doing so (minimal impairment).

Walker C.J.’s analysis centred mainly on the requirement that the legislation have a compelling interest.  He posed the crucial question as concerning a new right:

The parties do not dispute that the right to marry is fundamental.  The question presented here is whether plaintiffs seek to exercise the fundamental right to marry; or, because they are couples of the same sex, whether they seek recognition of a new right. (p. 110-11)

Walker C.J. began by addressing the argument that reproductive capacity is relevant in defining marriage.  He pointed out the state had never used reproductive capacity as a condition for issuance of a marriage license.  Indeed, if that were the case, the elderly could not be married.

The judge also considered the history of marriage, and gender roles within a marriage.  He addressed this point by finding that the gender roles attributed to a man and a woman come from an “artifact of time” which has now passed.  Moreover, he referenced other past state-sponsored exclusions from marriage which are now defunct, such as race.  Throughout US history, exclusions based on personal characteristics have been disallowed though, at the time, the issue may have been contentious.

Most importantly (in my opinion) Walker C.J. pointed out that gender is not relevant to the state when determining obligations that spouses may owe each other, and to their dependents.  These days, it is not uncommon to have a single-father household or see a divorced wife pay her husband alimony.  If gender roles are equal in this sense, then it only makes sense that the genders would be equal in marriage as well and unimportant to its definition.  

Therefore, Walker C.J. found that the proposition was unable to withstand strict scrutiny, primarily due to a lack of a compelling reason for the obvious discrimination. 

To the Ninth Circuit … and Beyond!

This rational analysis into the rights of same-sex couples inspires hope that the rights of individuals can withstand the intolerance of the religious right.  However, the journey is far from over.  A notice of appeal has been filed in the case and will be heard before the 9th Circuit Court of Appeals. 

It is likely a social issue of this magnitude will eventually travel to the US Supreme Court.  There, it is likely that the liberal four (Kagan, Sotomayor, Ginsburg, and Breyer) will uphold marriage equality.  Hopefully, the last vote will come from Justice Kennedy, who is rumoured to also support marriage equality.  While a Supreme Court decision is a long way off, this first step on the road to American marriage equality is quite a refreshing development.

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