Caveat: I am not a lawyer.
Prop 8 has been ruled unconstitutional. But the Court’s decision is narrow and limited. Here’s a key quote from page 47 of the decision:
We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.
In other words, that Court has ruled that while this particular ban on same-sex marriage is unconstitutional, it declines to rule that all bans on same-sex marriage are unconstitutional. How can that be?
The 9th Circuit decision rests on two key factors:
- California has a domestic partnership law that grants same-sex couples all the state-level benefits and responsibilities of marriage.
- Prop 8 eliminated an existing right, rather than ruling out a right that had not yet been granted.
The Court used these facts in their decision:
Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35.
In other words the 9th Circuit relied on a Supreme Court precedent, Romer v. Evans, which dealt with a law that took away an existing right. Thus, the 9th Court’s decision cannot be applied to states unless they are eliminating an existing right of same-sex couples to marry.
In addition, the 9th Circuit used California’s willingness to adopt a comprehensive domestic partnership law as evidence that there is no “legitimate reason” for taking away the right to marry. As the decision’s introduction said:
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.”
But why can the Court say that this is Prop 8′s only effect? Because California’s domestic partnership law is so broad, grants such a full array of rights, and is still in effect. Prop 8, therefore, has no practical purpose and merely:
…enacts nothing more or less than a judgment about the worth and dignity of gays and lesbisan as a class.
Just as a “desire to harm…cannot constitute a legitimate governmental interest” Morena, 413 U.S. at 534, neither can a more basic disapproval of a class of people.
An existing comprehensive domestic partnership law, and the removal of an existing right: These two key factors don’t apply to most states, and thus the reasoning behind the Court’s decision (and, by extension, the decision itself) doesn’t either.
I feel like the 9th Circuit was being strategic here. By tailoring the decision so narrowly on the CA voter initiative eliminating a right, I think it lessens the chance that the US Supreme Court will accept the case. If they don’t accept it, the 9th Circuit decision stands for CA and marriage equality is restored here, but has no effect on other states. I think there may have been some recognition on their part that the Supreme Court would not rule favorably under the broader issue.
We’re watching this case very closely here in Montana. We currently have a lawsuit in front of our state supreme court based on lack of equal protections. This was a very nuanced victory…
This has some seriously good ramifications for we proponents of marriage equality here in Washington State, where our legislature is about 24 hours away from passing an equality law.
We, as well, have the “everything but in name” laws already in place, and a referendum to overturn tomorrow’s law has been announced – but this decision by the 9th seems to foreclose upon that, as the facts are almost completely identical.
My analysis (public Facebook post): http://www.facebook.com/christopher.ambler/posts/10150637996900935
Very encouraging.
My concern is that this decision is going to have negative repercussions in a number of areas, such as domestic partnership, custody, adoption and other rights, so as to avoid fitting in to this particular legal niche. You may even see such things being slipped into unrelated bills. The fact that in California, domestic partnerships were in every way treated as equivalent to marriage was considered significant to this decision. You will see anti-gay legislators doing whatever they can to make sure their state does not fit that description.
I’m afraid this decision doesn’t seem to apply to the situation in Washington. We do have domestic partnerships with identical rights to marriage, but the referendum that’s coming up is to approve the gay marriage law in the first place, not to overturn it with another law. So it doesn’t meet the second criterion.
Here’s another cause for a couple of cheers: the Washington House passed marriage equality (the senate passed it last week), and so the bill is on to the desk of Gov. Gregoire, who has pledged to sign it.
Of course NOM–I mean the people of Washington–have promised to get the signatures for a voter referendum, but it’s still a step forward, no?