Prop. 8 declared unconstitutional by 9th Circuit Court; stay prevents same-sex marriages from resuming

Published: Tuesday, Feb. 7 2012 11:00 a.m. MST

The 9th Circuit's finding that Prop. 8 was unconstitutional gives the U.S. Supreme Court an important reason to weigh in on the question, Duncan said. "The goal of the plaintiffs from the beginning was to get to the Supreme Court," he said. "They want a national declaration that the U.S. Constitution mandates same-sex marriage."

But the circuit court did not give a broad ruling that banning same-sex marriage is unconstitutional in all circumstances in all states. They made it much more narrow and applied it only to California's unique situation.

That situation consists of two main things that existed before the passage of Prop. 8. First, California passed a domestic partnership law that gave all the benefits of marriage to gay and lesbian couples, but reserved the term "marriage" for heterosexual couples. Second, California allowed, for a six-month period in 2008, gay and lesbian couples to be legally married.

As Judge Smith noted in his dissent, the California Supreme Court previously ruled Prop 8 valid under the California state constitution.

But in language similar to Judge Walker's in the Federal District Court, today's ruling said Prop. 8 violated the Fourteenth Amendment to the Constitution. The majority opinion stated that there needed to be at least a legitimate reason for the passage of a law that treats different classes of people differently. "There was no such reason that Proposition 8 could have been enacted," the opinion states. "Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of the marital status, all parties agree that Proposition 8 had one effect only."

That one effect, the court said, was to strip same-sex couples of something the state had already given them: The right to obtain and use the designation of "marriage" to describe their relationships.

"Nothing more, nothing less," the court said.

It was the targeting of a minority group to take away an existing right, they said.

This was the narrow ground the court decided. For the Ninth Circuit, the definition of marriage was "the name that society gives to the relationship that matters most between adults." It was a designation that carried "societal approval" and "official status." The designation "registered domestic partnership" didn't have the same effect, the court said. It wasn't "validation."

To back up their definition, the court cited the use of the word "marriage" from everyone from Frank Sinatra and Abraham Lincoln to Groucho Marx and Marilyn Monroe.

The proposition, the court said, eliminated a right — something it said the Constitution does not allow.

The court dismissed the pro-Prop. 8 position as lacking any footing in reality and said the reason it was passed was "mere disapproval" of and a "judgment about the worth and dignity of gays and lesbians as a class."

But Rodney Smith, (no relation to Judge Randy Smith) distinguished professor of law at Thomas Jefferson School of Law in San Diego, said the Supreme Court might see the issue differently. If the question is about whether the voters for Prop. 8 acted with a rational basis, Smith said the Supreme Court tends to be more conservative than the 9th Circuit. "The more conservative members of the Supreme Court generally would say 'You just need to give us a rational reason,'" he said. "And that the counsel for Proposition 8 will be able to do. The Supreme Court is also more inclined to be deferential to the electorate -- so they won't go behind this and demand a high level of empirical support."

Utah Sen. Orrin Hatch tweeted, "The decision on Prop 8 is judicial activism at its worst, and I strongly oppose this decision."

By keeping the decision narrowly confined to taking away an existing right, the court avoided saying if other states should be required to allow same-sex marriages. Had they decided on that broader question, it would have been more certain the Supreme Court would hear the case. "The Supreme Court would absolutely have taken it," Duncan said. "It would have been like the Roe v. Wade of marriages."

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