Today, the Ninth Circuit (the federal court in whose jurisdiction California falls) published its decision upholding the prior ruling that stated that Proposition 8 is unconstitutional.
Of course, this is a bit of a “duh” moment, but it’s still good news.
What follows is, I hope, an English translation of the decision for the lay-person. It is not intended to be a legal note on the decision (although I have provided citations for those who want to dive into the text). Others have likely interpreted the decision for the legal community far better than I can or care to.
THE GOOD NEWS: the Court found Proposition 8 was unconstitutional under the federal (not the California) Constitution
The oft-quoted (and quite quotable) excerpt here is
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 and inferior to those of opposite-sex couples. The Constitution simply does not allow for “laws of this sort”.[1]
The gist of the ruling is that (1) a right existed, (2) that right was removed for a segment of the population, (3) that is exactly what Equal Protection guards against.[2]
Central to the majority’s argument is that the right to marry existed for all Californians before Prop 8 became law[3] (this is the “you can’t vote on my rights because they’re rights” argument). The majority explicitly (and multiple times) does not rule on whether or not California or the federal government should extend the right to marry to all couples, but only that California did and, after doing so, cannot rescind that right.[4]
The decision discusses at length[5]—and with some humor[6]—the meaning of the word “marriage” and compares it to the rights of domestic partnership. In general, it finds that the word “marriage”, while just a word, is an important word.[7]
The majority addresses the religious freedom argument[8] (as well as the only-fertile-couples-who-want-children argument[9]) and explicitly stated that the proposition had no effect on religious rights or parents’ rights over their children’s educations, a red herring frequently flopped about by Proposition 8′s proponents.
It also briefly addressed the heinous assertion that, since Judge Walker was gay, he should have recused himself, dismissing it as “not […] reasonable”.[10]
I like the ending (after having given its conclusions, then its arguments):
By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause. We hold Proposition 8 to be unconstitutional on this ground.[11]
Word.
THE BAD NEWS: the Dissent raises some valid points—points that, if this makes it to the Supreme Court, we’ll likely see again
In the United States, race, national origin, and religion are called “suspect classes” because discrimination on the grounds of any of them is subject to the highest level of scrutiny. Next is “quasi-suspect classes”, which include gender and, for some reason, marital status of parents at birth. Sexual orientation has never been allowed by the Supreme Court as either a suspect or a quasi-suspect class, which puts it in the “everything else” category.
The majority side-steps the issue of classification of sexual orientation and focuses instead on the fact that marriage is a right and that right was denied.
The dissent, on the other hand, emphasizes the fact that sexual orientation is not a suspect (or quasi-suspect) class[12] and so the law need only have some rational relationship to some legitimate end[13]. Unfortunately, under the arguments of the majority, there are indeed legitimate ends that might rationally be served by Prop 8. The dissent outlines these and then takes the case that the majority has been comparing this situation to (Romer v. Evans, a U.S. Supreme Court case) and reminds us that the Supreme Court found that it failed the rational basis test.[14]
Note, if you will, that the dissenting judge reminds us that these are the legal arguments, not the judge’s own personal biases, although I’ve heard it floated that this judge was Mormon…take from that what you will.
FINALLY: Next stop Supreme Court!
The right to marry is still on hold pending an appeal. From here, the only place left is the Supreme Court. The losing side will appeal (but if they don’t, Californian marriages for all can resume) and we get to await the pleasure of the U.S. Supreme Court. It is not likely that this will end up on this year’s docket, so we’re looking at another two years at least.
I’m not sure, however, that it’s something the Supreme Court will decide to rule on. The Ninth Circus Circuit is well-known for being the most overturned district court in the country, but the Supreme Court usually only hears matters where there is what is called a “Circuit-split”: two or more Circuit courts have come to different conclusions on the same point of law. This decision was very fact-specific, making it less likely that the same situation will arise in a state outside the Ninth Circuit’s bailiwick.
Time will tell.
Celebrations are in order: a battle has been won. But not the war.
Footnotes:
[1] Page 5
[2] Page 7,
The People [of California] 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.
[3] Page 9, discussing the history of marriage and domestic partnership laws in California.
[4] Page 6, 47
[5] Page 36, listing rights of marriage and domestic partnership.
[6] Page 38:
We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, “Will you marry me?”, whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?”. 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 the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship. Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different. The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships.
Well, happy Valentine’s Day to you, too, Ninth Circuit!
[7]Page 69,
Proposition 8′s only effect, we have explained, was to withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of a societal status that affords dignity to those relationships.
[8] Page 66-67,
There is no dispute that even before Proposition 8, ‘no religion [was] required to change its religious polices or practices with regard to same-sex couples, and no religious officiant [was] required to solemnize a marriage in contravention of his or her religious believes.’
[9] Page 56,
Proposition 8 in no way modified the state’s laws governing parentage, which are distinct from its laws governing marriage” and so Prop 8 could not have been enacted to “advance[] California’s interest in responsible procreation and childrearing
[10] Page 78,
Nor could it possibly be ‘reasonable to presume’ […] ‘that a judge is incapable of making an impartial decision about the constitutionality of a law, solely because, as a citizen, the judge could be affected by the proceeding.
[11] Page 79-80
[12] Page 9 of the Dissent (Page 98 of the whole document) and Page 10 (Page 99): “Gays and lesbians are not a suspect or quasi-suspect class.”
[13] Page 10-11 (Page 99-100)
[14] Page 17 (Page 106)
