The past seven days has provided many different topics that I could have commented on, from the decision by the Komen Foundation to withhold funding from Planned Parenthood for cancer screenings, and their subsequent reinstatement of grants after massive social outrage. Or I could have brought up the decision by New York City Mayor Mike Bloomberg to not hold a parade for returning Iraq veterans but their choice to hold one for the Super Bowl champion New York Giants on Tuesday.
There was the revelation that Wisconsin Assembly Republicans signed forms stating they would not discuss plans concerning the redistricting after the 2010 census. Finally there was the decision by the 9th Circuit Court of Appeals on Tuesday that upheld a decision declaring that California’s Proposition 8 was unconstitutional.
It is this last topic that I am choosing to dedicate this column to today, not only because I unequivocally support the decision, but also because I think that there is a lot of room to misinterpret what the 9th Circuit ruling actually did. So let’s start with the facts of the case.
In July 2008 the California Supreme Court ruled that same-sex couples have a constitutional right under the California constitution to marry each other. This overturned Proposition 22, which passed during the 2000 elections, and was merely a voter initiative, not a constitutional amendment. Then in the elections held that November, Proposition 8 was passed, amending the state’s constitution to read that a ‘marriage’ was between one man and one woman.
Over this three and a half month span, approximately 18,000 same-sex couples married in California, and remained married after Prop 8 took effect. California still allowed same-sex couples to engage in ‘domestic partnerships’ that were legally identical to the benefits that ‘married’ couples enjoyed, and this was true before the California Supreme Court struck down Prop 22. This fact will prove crucial in the 9th Circuit’s opinion.
After the California Supreme Court upheld Prop 8 it was appealed to the Federal District Court, which ruled in 2010 that Prop 8 violated both the Equal Protection Clause and the Due Process Clause of the 14th Amendment. Finally, on Tuesday the 9th Circuit issued its opinion affirming the ruling.
The 9th Circuit issued a very narrow opinion, holding 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. The Constitution simply does not allow for ‘laws of this sort.’”
What the 9th Circuit did not do is decide whether or not the Federal constitution allowed the prohibition of same-sex marriage, “because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.”
In affirming the district court ruling overturning Prop 8, the appeals court found that California had “no rational basis for limiting the designation of ‘marriage’ to opposite-sex couples,” and that “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry.”
The court noted that those defending Proposition 8 themselves admitted, “that the word ‘marriage’ has a unique meaning,” which effectively argued against their position of withholding that term from being used by same-sex couples.
“The name ‘marriage’ signifies the unique recognition that society gives to harmonious, loyal, enduring, and intimate relationships … We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries … Proposition 8 works a meaningful harm to gays and lesbians, by denying to their committed lifelong relationships the societal status conveyed by the designations of ‘marriage.’”
Almost immediately after the ruling was announced it was pretty much guaranteed that the Republican presidential candidates would come out with statements condemning the decision.
Rick Santorum called for the 9th Circuit “to be abolished and split up,” and that “The people of California spoke clearly at the ballot box.” The only problem with that is that rights are not supposed to be voted on--we receive them regardless of popular opinion. It is why Rick Santorum can be the bigot that he is.
Mitt Romney came out and said that he would “appoint judges who interpret the Constitution as it is written,” but the only problem with that statement is that is exactly what the judges on the 9th Circuit did on Tuesday.
The equal protection clause of the 14th Amendment clearly says, “No state shall … deny any person within its jurisdiction the equal protection of the laws.” Past case precedent has established that states “have a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer that right or benefit in the first place.”
That is exactly what happened in this case after the California Supreme Court ruled that Proposition 22 violated the state’s constitution and that same-sex couples could legally marry within the state.
An interesting facet about this case is that no California state official is defending the law at this point. They are still parties to the lawsuit and could chose to file motions if they so choose, but much like the Department of Justice has stopped defending the Defense of Marriage Act, they have refused to. That means those who filed the initial paperwork to get Proposition 8 on the ballot in 2008 are the ones currently defending the law.
So what happens next? Well, the supporters of Prop 8 now have to decide whether to request an en banc hearing in front of the entire 9th Circuit, the ruling in Tuesday’s decision was from a three-judge panel, or they could request that the United States Supreme Court hear their appeal.
It is unlikely that an en banc hearing would produce a different result that we saw Tuesday, so that leaves the Supreme Court as the likely destination, but the question is, will they even chose to hear the appeal?
As most casual observers of the Court know, it is ideologically split down the middle, with Justice Anthony Kennedy largely considered the ‘swing’ vote on the court. It should be noted that the 9th Circuit relied heavily on Romer v. Evans, a case from 1996 where the Court held that Colorado could not deny homosexuals equal protection from discrimination, and it just so happens that Justice Kennedy wrote the majority opinion in that case.
It takes only four out of nine justices to vote to hear a case that has been appealed to them, but with Justice Kennedy, not only voting in favor of gay rights, but also authoring the majority opinion nonetheless, it seems certain that the appeal would lose if granted review.
So while it seems certain that Proposition 8 will be struck down on equal protection grounds, it does not carve out a constitutional right for same-sex couples in other states to marry their chosen partners.