Proposition 8 Invalid Says Appellate Court: A Synopsis

The Ninth Circuit Court of Appeals has affirmed the decision to overturn Proposition 8, which stripped gay couples of their right to marry.  The Court said, “We consider whether that amendment (Prop 8) violates the Fourteenth Amendment to the United States Constitution. We conclude that it does.”

The Justice noted that Prop 8 had only one intention: “It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right—the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less. Proposition 8 therefore could not have been enacted to advance California’s interests in childbearing or responsible procreation, for it had no effect on the rights of same-sex couples raise children on the procreative practices of other couples. Nor did Proposition have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.”

In essence, they found that Proposition 8 was intended to harm one class of people. They said it served no purposes except “to less the status and human dignity of gays and lesbians in California, and to officially reclassify their relationship and families as inferior to those of opposite-sex couples. The Constitution simply does not allow ‘for laws of this sort.’”

The Court narrowly ruled, saying that they did not have to consider the broader question of marriage rights. This was 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” this right “This unique and strictly limited effect on Proposition 8 allows us to address the amendment’s constitutional on narrow grounds.”

The court relied upon the Supreme Court ruling in Evans v. Roomer, a Colorado case. In this incident the state had granted gay individuals the same rights, in regards to anti-discrimination laws, that were granted to individuals in regards to gender, religion, race, etc. But Amendment 2 was proposed by anti-gay hate groups to strip this right, but only from gay people. In other words, they proposed, “rights for me, but not for thee.” Routinely we see the Religious Right argue that rights to discriminate do not apply when religion, which is a chosen condition, is involved. That is, you may not discriminate against a fundamentalist Christian. However, they turn around and argue that a right to discriminate must apply toward homosexuals based entirely on the fact that they have significant animus toward these people.

The Supreme Court ruled against Amendment 2 because “it is not within our constitutional tradition to enact laws of this sort” that legislation that “single out a certain class of citizens for disfavored legal status.” They found that the reason for the law was not that it service some compelling state interest, but that it was based on hatred for one group of people. This, they said violated the equal protection of rights guaranteed by the Constitution.

The Prop 8 ruling said that 8 “is remarkably similar to Amendment 2” in that in singles out only one class of people, gay people, for lesser rights. “Like Amendment 2, Proposition 8 denies ‘equal protection of the laws in the most literal sense… because it ‘carves out’ an ‘exception’ to California’s equal protection clause, by removing equal access to marriage, which gays and lesbians had previously enjoyed, from the scope of that constitutional guarantee.”

They noted that Prop 8 was, in a particular way, more of a violation of equal protection than Amendment 2 “because its effect is narrower… the surgical precision with which it excises a right belonging to gay and lesbian couples makes it even more suspect.” Consider a law that says one may not discriminate on the basis of ethnicity. This treats all ethnic groups equally. A measure that repeals the entire law would not single out any group; again all ethnicities would have the same rights. But, if a measure were proposed to strip away this right only from individuals with Swedish, Italian, or German ethnic backgrounds, it would be considered invalid unless the state can show “a legitimate reason for withdrawing a right or benefit from one group but not others, whether or not it was required to confer this right or benefit in the first place.”

The Court also looked at whether there was any legitimate reason for withdrawing this right from same-sex couples alone.  They said the arguments offered by the anti-gay organizations involved did not present any valid evidence that same-sex marriage violated the rights of others, or harmed a compelling state interest.

Prop 8 proponents had argued that the state has an interest in “responsible procreation and childbearing” and therefore should uphold the amendment. The court found this argument odd in that “same-sex couples are not at risk of ‘irresponsible procreation” and Prop 8 “is not rationally related… to either of these purported interests, whether or not the interests would be legitimate under other circumstances.” The Court also said it didn’t have to determine whether it is better to raise children with their two biological parents because “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. As we have explained, Proposition 8 in now way modified the state’s laws governing parentage, which are distinct from its laws governing marriage.” In other words, the justification used by Prop 8 proponents was never actually addressed by the proposition itself.

As for responsible procreation, the Court noted, “Unlike opposite-sex couples, same-sex couples pose no risk of procreating accidentally.”  So, the arguments used by the anti-gay lobby, regarding children and procreation, simply doesn’t apply to the case. There is no need to consider those arguments at all as the Proposition itself did NOT actually address those issues.

The Court also addressed another favorite bugaboo of the anti-gay Right: that of religious freedom. They did so, not because the litigants made this argument, as they did not, but because it was raised by various Right-wing anti-gay groups via Amicus briefs. The problem for them is that Proposition 8 did not address any of those issues either. In fact, what the Proposition 8 proponents did was write a proposition that did one thing, while campaigning on completely unrelated different issues. They attempted to do the same thing in their appeal.

They wished to divert the Court’s attention from the matter being considered in order. They did this with voters through their campaign. They whined incessantly about bogus issues, or matters entirely outside the scope of Proposition 8. While there is no legal requirement to be truthful in campaigns, and such tactics work there, they are not useful in courts of law that have to consider the actual law and the real impact of the law. The entire Proposition 8 media campaign was based on issues that Proposition 8 never addressed. That might have been good politics—in the sense that it worked—but that is not a good legal argument for court.

The Court also looked at the argument from tradition and quoted the Lawrence v. Texas decision: “[T] he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could saw a law prohibiting miscegenation from constitution attack.” They said that a mere preference for the past “without any identifiable good that a return to the past would produce” is insufficient to justify an attack on the rights of one group.

The Court, after showing that Prop 8 did not address any of the issues raised by its proponents, argues that there is only one true motive left for the proposition is “disapproval of gays and lesbians as a class.” They said: “Proposition 8 enacts nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.”  The Court noted that the proponents of 8 used a campaign that “relied on stereotypes to show that same-sex relationships are inferior to opposite-sex relationships” and “focused on… the concern that people of faith or religious groups would somehow be harmed.” They noted that the proponents admitted that their strategy was crafted on the idea that there “were limits to the degree of tolerance Californians would afford the gay community” and that they had to convince them that marriage rights had “significant implications” pushing people beyond those limits. They noted that this sort of hate campaign, based on false stereotypes, was used in the Amendment 2 campaign as well.