The Long Road to Same-Sex Marriages: Proposition 8 Revisited

The recognition of civil liberties for same-sex couples in the United States have stalled again. While many rejoiced when the 9th Circuit Court of Appeal found that Proposition 8 violates the Fourteenth Amendment to the United States Constitution, Proposition 8 Sponsors sought reconsideration by the panel on February 21st.  This move further delayed the re-legalization of same-sex marriages in a state home to more than 98,000 same-sex couples.

Prior to November 4th, 2008, when Proposition 8 was adopted, the California Constitution guaranteed the right to marry opposite and same-sex couples. On February 7th, the 9th Circuit Court of Appeal narrowly found that while the Constitution allows communities to enact laws they find to be desirable, there must be a legitimate reason for the passage of a law that treats different classes of people differently. They found no such legitimacy with proposition 8. The Court intentionally applied this judgment very narrowly only to California state law.

Writing for the 2-1 majority, Justice Reinhardt found 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.” He reaffirmed the judgment of the district court which also found that the proposition was contrary to the Constitution.

The Lead-up

By 2008, California had substantially expanded the rights of domestic partners. Same-sex couples were statutorily provided the opportunity to obtain virtually all of the benefits and responsibilities afforded by California law to married opposite-sex couples. This was codified in the 2003 Domestic Partner Act. The only thing withheld was the ability for same-sex couples to ‘marry’.

In 2004, same-sex couples and the City and County of San Francisco successfully filed actions in California courts alleging that the State’s marriage statues violated California’s Constitution. The court held that the fundamental right to marry provided by the California constitution could not be denied to same sex couples. “An individual’s homosexual orientation is not a constitutionally legitimate basis for withholding or restricting those legal rights.” They then found that the different statutory assignment of different names for the official relationship of opposite and same sex couples violated the Equal Protection clause of the California Constitution. The court decided that withholding ‘marriage’ in name only from same-sex couples violated the California Constitutions’ guarantee of equal protection.

Following this decision, more than 18,000 marriage licenses were issued in California to same-sex couples.

Enter Proposition 8

Five California residents collected signatures and created petitions for a constitutional amendment which proposed that only marriages between a man and a woman would be recognized in California. In the California General Election on November 4, 2008, 52.3% of California voters approved Proposition 8.

Opponents to Proposition 8 brought an action for a writ of mandate in the California Supreme Court. The court upheld Proposition 8 as a valid initiative and found that the 18,000 marriages were not nullified.

Two same sex couples filed an action in May 2009 after being denied marriage licenses. They allege that Proposition 8 violates their Fourteenth Amendment Right. A district court decided in August 2010 that Proposition 8 was unconstitutional under both the Due Process Clause and Equal Protection clause.  The proponents immediate appealed, and this case was then brought to the 9th Circuit Court of Appeal where Justice Reinhardt affirmed the lower court decision.

Justice Reinhardt’s Reasoning

After briefly affirming the state has legitimate standing in this case in that they have authority to assert the people’s interest in the constitutionality of an initiative measure, the court turned to the merits of Proposition 8’s constitutionality.

While recognizing the two reasons by which the district court held Proposition 8 to be unconstitutional, the court applied a third, very narrow reasoning in adjudicating the constitutional question. The court found that Proposition 8 singles out same sex couples for unequal treatment by taking away from them the right to marry. The Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason.

Because Proposition 8 only eliminates the ability to use the designation of marriage while not affecting any other rights, it carves out a narrow and limited exception of state constitutional rights. Same-sex couples have all the same legal rights as before but without the designation of ‘marriage’. Justice Reinhardt then poetically discussed the significance of marriage in society. He explained, “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.”

The court considers whether the People of California had legitimate reasons for enacting a constitutional amendment that serves only to take away same-sex couples have the right to marry.  This decision hinges on Romer v. Evans517 US 620 (1996), a Supreme Court decision which struck down a Colorado constitutional amendment. The Court invalidated Amendment 2 of the Constitution of the State of Colorado, which discriminated based on sexual orientation. The Amendment specifically targeted homosexuals, stripping them of their substantive legal protections.

The court then rebutted the justifications given by proponents of Proposition 8 concluding that there was no legitimate reason for excluding same-sex couples from marrying.

Narrow Interpretation

It is interesting that the court limited the scope of the decision to California while the 9th Circuit has jurisdiction over nine Western states. This is in line with the court’s propensity to make incremental decisions and not sweeping ones.

Additionally, because the judgment is so narrow, it is less likely that the Supreme Court will hear the decision. Unless implications reverberate throughout the entire country, the Supreme Court may defer to a future judgment with broader implications that can be used to establish a decision on the constitutionality of same-sex marriage.

Some critics contend that the court limited the scope of this decision as narrowly as possible and cannot therefore be properly heard at the Supreme Court for national unity on the matter.

This criticism highlights the tension between the strength of the majority and the purpose of the constitution. In Canada, we have the Charter to protect the rights of minority groups and it is the court’s obligation to ensure that those rights are not infringed upon by the will of the majority. The Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This is the constitutional element of protecting minority rights. It is the court’s responsibility to balance these conflicting interests.

Contrary to Justice Smith’s dissent in which he wrote that the court was overreaching when invalidating a voter initiative. In this case, the court assured those rights, but did so in a narrow way as not to minimize the undermining of majority’s will.

Further Delays

Backers of Proposition 8 are trying to exhaust every possible avenue before they defer to the Supreme Court. Sponsors of Proposition 8 sought the 9th Circuit’s reconsideration arguing that the panel overlooked a 1972 Supreme Court precedent in a same-sex marriage case that should have been binding in addition to their poor application of Romer v Evans.

Same sex marriages will remain on hold until the 9th Circuit decides to accept or reject their rehearing petition. Jane Schacther, a Stanford University professor, suggested that while the while the 9th Circuit does not often reverse the decisions of member judges, Proposition 8 backers might believe a ruling by a bigger appeals court panel could yield a decision more likely to pique the interest of the Supreme Court. This would also give them another attempt to achieve more persuasive dissents going into the Supreme Court.

This petition illustrates the lengths anti-marriage proponents will go to prevent same-sex couples from getting married. Chad Griffin, president of the American Foundation for Equal Rights, explained “Separate is never equal — and I am confident that one day, very soon, every American will be able to enjoy the fundamental freedom to marry.”


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