February 7th, 2012
Caveat: I am not a lawyer.
Prop 8 has been ruled unconstitutional. But the Court’s decision is narrow and limited. Here’s a key quote from page 47 of the decision:
We therefore need not and do 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.
In other words, that Court has ruled that while this particular ban on same-sex marriage is unconstitutional, it declines to rule that all bans on same-sex marriage are unconstitutional. How can that be?
The 9th Circuit decision rests on two key factors:
The Court used these facts in their decision:
Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35.
In other words the 9th Circuit relied on a Supreme Court precedent, Romer v. Evans, which dealt with a law that took away an existing right. Thus, the 9th Court’s decision cannot be applied to states unless they are eliminating an existing right of same-sex couples to marry.
In addition, the 9th Circuit used California’s willingness to adopt a comprehensive domestic partnership law as evidence that there is no “legitimate reason” for taking away the right to marry. As the decision’s introduction said:
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.”
But why can the Court say that this is Prop 8’s only effect? Because California’s domestic partnership law is so broad, grants such a full array of rights, and is still in effect. Prop 8, therefore, has no practical purpose and merely:
…enacts nothing more or less than a judgment about the worth and dignity of gays and lesbisan as a class.
Just as a “desire to harm…cannot constitute a legitimate governmental interest” Morena, 413 U.S. at 534, neither can a more basic disapproval of a class of people.
An existing comprehensive domestic partnership law, and the removal of an existing right: These two key factors don’t apply to most states, and thus the reasoning behind the Court’s decision (and, by extension, the decision itself) doesn’t either.
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Prologue: Why I Went To “Love Won Out”
Part 1: What’s Love Got To Do With It?
Part 2: Parents Struggle With “No Exceptions”
Part 3: A Whole New Dialect
Part 4: It Depends On How The Meaning of the Word "Change" Changes
Part 5: A Candid Explanation For "Change"
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