California Proposition 8: Ninth Circuit rules ban on same-sex marriage is unconstitutional

The Ninth Circuit Court of Appeals has ruled that Proposition 8 – a voter-approved law that bans same-sex marriage in California – is unconstitutional.

The three-judge panel unanimously upheld two prior federal court decisions to strike down Prop 8. The ballot measure, which was narrowly approved by California voters in 2008, amended the state constitution to “eliminate the right of same-sex couples to marry” by defining marriage as only between a man and a woman.

“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 [of the constitution]. We hold Proposition 8 to be unconstitutional on this ground,” the Ninth Circuit ruled in Perry v. Brown. “It suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their rights to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.”

The 14th Amendment’s Equal Protection clause cited by the Ninth Circuit prohibits states from denying any person equal protection of the laws. In other words, laws have to be applied equally to everyone. So, for instance, the government cannot grant everyone over the age of 18 the right to marry but pass a law to prohibit Christians, Catholics, and Mormons from exercising their right to marry. However, an exception may be granted if there’s a compelling state interest to justify the exclusion of specific populations from exercising certain rights.

In the case of Perry v. Brown, the Ninth Circuit found that Prop 8 took away the right of gays and lesbians to be legally married but served no legitimate state interest in doing so.

For example, proponents of Prop 8 claimed that the measure would help further “California’s interest in childrearing and responsible procreation.”

On the first point, Prop 8 would, in theory, encourage more children to be raised by two biological parents – an arrangement that proponents claimed would be more beneficial for children and society. (The court did not decide on the merit of that particular claim.) But the Ninth Circuit pointed out that Prop 8 only excluded same-sex couples the right to be married but didn’t change existing laws that allow gay men and lesbian women to adopt children. “Proposition 8 had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California,” the court argued. Thus, Prop 8 did not serve the purpose that proponents claimed.

On the second point, Prop 8 proponents argued that the banning same-sex marriage would somehow encourage “responsible procreation.” The court flatly rejected that argument, stating “there is no rational reason t think that taking away the designation of ‘marriage’ from same-sex couples would advance the goal of encouraging California’s opposite-sex couples to procreate more responsibly.”

Proponents also claimed that Prop 8 would protect religious freedom by allowing religious organizations to deny services to families headed by gay or lesbian spouses without fear of being penalized under California’s anti-discrimination laws. The court countered by pointing out that the state’s anti-discrimination laws remain unchanged under Prop 8 and would still apply to religious organizations.

Finally, the proponents argued that Prop 8 served a legitimate state interest because the measure would “protect our children from being taught in public schools that ‘same-sex marriage’ is the same as traditional marriage.” The Ninth Circuit refuted that argument, emphasizing that schools are not required to teach about same-sex marriages. “Both before and after Proposition 8, schools have retained control over the content of such lessons,” the court reiterated.

The Ninth Circuit concluded that Prop 8 did not serve any legitimate state interests. Instead, the court determined that Prop 8 was used to express and impose “a majority’s private disapproval” of gays and lesbians. By prohibiting same-sex marriage, Prop 8 sends a message “that gays and lesbians are of lesser worth as a class – that they enjoy lesser societal status.”

The Ninth Circuit’s decision was a hard-won victory for supporters of same-sex marriage.

“Today, the United States Court of Appeals has affirmed a simple, fundamental American truth: how we are born and who we choose to love should not be a basis for discrimination in this country,” said Chad Griffin, President of the American Foundation for Equal Rights, the organization leading the lawsuit against Prop 8. “Every American regardless of race, ethnicity, or sexual orientation deserves the same dignity and respect, the same freedom to love and to marry and to build a family. That’s all this case is about. Not special rights or privileges – just fairness and equality.”

However, Prop 8 proponents warned that the legal battle is “far from over.” The case is expected to be appealed to the U.S. Supreme Court.


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