Analysis of ruling Prop 8 unconstitutional


A Federal appeals court ruled 2-1 today that California Proposition 8, which banned same-sex marriage, was unconstitutional.


Judge Stephen Reinhardt, a liberal lion of the famously rambunctious 9th Circuit Court, came to a half-hearted rescue of gay marriage, striking down the proposition while explicitly refusing to rule on whether there is a constitutional right to gay marriage, as many in the LGBT community were hoping.
Gay marriages are still on hold until the case is either upheld or taken up by the Supreme Court in the fall.
In 2008, the California Supreme Court ruled that a law banning gay marriage was unconstitutional, and allowed about 18,000 same-sex marriages until Proposition 8 passed in 2010, which took the right away.
Two same-sex couples challenged Proposition 8 in Federal court, and Judge Vaughn Walker of San Francisco District Court struck down the law, saying that gays had a fundamental right to marriage.
The 9th Circuit said that it was critical that gays had a pre-existing right and were then singled out to have their right to marriage taken away. Essentially, the court ruled that the state cannot bully a minority without any legitimate reason for doing so, and that the only reason the law was passed was to demean same-sex partners.
“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,” wrote Justice Reinhardt.
In several memorable passages, Reinhardt explains why domestic partnerships are not enough.
“Marriage is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage of ‘registered domestic partnership,’ does not.”
Reinhardt asks if, “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.”
It is the word Marriage, not the bundle of contractual obligations, that society honors. “It is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship,” wrote the court.
So the court had to ask why the state of California would go through the extraordinary process of amending its constitution in order to take away the honor of the word marriage. The court found that there was no legitimate reason for doing so.
It said that California’s Proposition 8 was very similar to Colorado’s Amendment 2, which the Supreme Court struck down in a 1993 case that said the law, “classified homosexuals not to further a proper legislative end but to make them unequal to everyone else.”
Because same-sex partners were so clearly singled out as minorities, it violates the Equal Protection Clause of the Constitution and so the court doesn’t even have to address the underlying issue of whether there is a Constitutional right to gay marriage. “We therefore need 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.”
Nina Totenberg of National Public Radio said that Reinhardt’s decision was, “crafty,” because it struck down Proposition 8 on such narrow grounds. It gave the Supreme Court the wiggle room to either take up the fundamental right to same-sex marriage or just let the narrow ruling stand.
It would be crafty in two circumstances. Sometimes a judge has to water down his decision in order to get the swing vote. Other times, a judge will make a narrow decision because he feels like the issue isn’t ripe enough for the Supreme Court, perhaps wanting a momentum of states recognizing gay marriage.


The same-sex partners were represented by a un unusual super-duo: David Bois, who represented Al Gore before the Supreme Court in his election case was partnered with Ted Olson, a staunch Republican who argued against him for George Bush. They crafted this easy third way for Reinhardt, offering him a way to strike down Proposition 8 while avoiding taking on the issue of the fundamental right to gay marriage.

As it is, the ruling is a giant leap for the protection of minorities generally. It says all the right things, garlanding a narrow ruling with romantic odes to marriage, but ultimately leaves the fundamental right on the side of the road with its thumb still out.


In a separate ruling, the court held that the judge who first heard the case in San Francisco, retired Chief U.S. District Judge Vaughn R. Walker, was not biased in hearing the case even though he was a gay man in a long-term relationship.
This was like a court ruling that Justice Thurgood Marshall was able to hear civil rights cases even though he was black.

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