One Cheer, Maybe Two, Definitely Not Three

Rob Tisinai

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:

  • California has a domestic partnership law that grants same-sex couples all the state-level benefits and responsibilities of marriage.
  • Prop 8 eliminated an existing right, rather than ruling out a right that had not yet been granted.

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.

Ben In Oakland

February 7th, 2012

my guess is that that was their intention– a very narrow ruling that applies to california only.


February 7th, 2012

I also noticed that and I am also not a lawyer. I wonder if SCOTUS has to deal only with what the appeals court ruled on or if they can make a broader ruliing. I am thinking the former right since they can only make a decision on the validity of the appeals court ruiling just like the appeals court had to make a ruiliing on the validity of the original ruiling. It seems doubtful that even if they could make a broader ruiling they would. Maybe the 9th circut knew SCOTUS wasn’t ready to make a ruiling that had national implications.


February 7th, 2012

Keeping the ruling focused like this significantly increases the chances that the Supreme Court won’t take the case, while building precedent.

They may not have struck down bans throughout the circuit, but you have to wonder what might happen in Washington state now, which thanks to their lawmakers has a legal landscape just like California’s pre-prop 8.

Dan Gonzales

February 7th, 2012

Ben, in the future there could conceivably be other states that roll back marriage equality. If that happened I imagine today’s ruling could apply.


February 7th, 2012

There seems to be some reasoning going on here that perhaps only a lawyer can figure out — or perhaps it’s just the relatively narrow focus of the case itself.

My understanding is that the Constitution does not grant rights, it recognizes them, which seems to me to be implicit in the California Supreme Court’s initial decision: the law arbitrarily withheld a right from a class of citizens for no rational reason. (And I daresay you’ll find that rationale at the core of every state court decision overturning existing marriage laws in favor of recognizing same sex marriages.)

By the time this case was filed, the context was different — the basis, as I recall, was Equal Protection — but it seems to me that the 9th Circuit could have broadened its findings if it had wanted to. For some reason, it just didn’t want to go there.


February 7th, 2012

I’m not a lawyer. I have a law degree and focused on con law, but chose not to practice.

The case that this ruling was based on, Romer, was written by Justice Kennedy…who just happens to be the swing vote on the Court. It was purposefully written narrowly and catering to him just in case the Court grants cert, which it probably won’t because the narrow nature of the ruling keeps there from being a conflict with other circuits.

Kennedy wasn’t going to overrule his own opinion, but as a Catholic, may not be willing to support a broad based ruling that conferred gay marriage rights in every state.

I think the decision was cowardly. Kennedy is very historically conscious, and cares about public opinion. He has cited international law in a case where he struck down the death penalty on juveniles, and he also wrote the opinions striking down anti-sodomy laws and the Colorado constitutional amendment that did away with anti-discrimination laws against gays. If I were the Ninth Circuit, I would have forced Kennedy to make the decision: do what’s right, or be remembered as the guy who wrote the modern day equivalent to Dred Scott or Plessy v. Ferguson.


February 7th, 2012

It doesn’t matter whether a state has an pre-existing civil unions law. To fall w/in this ruling, the state would need to have reverted from full marriage equality to civil unions for gays. In CA, they went from civil unions to marriage and back to civil unions, but the rationale of the decision would apply equally to a state that went from no recognition to full marriage and then to civil unions. The former scenario could play out in New Hampshire and the latter could play out in Iowa. Neither state is in the 9th Circuit, but the decision should be helpful to our side anyway. And if the Supreme Court agrees, then it will make it very difficult for those states to repeal.

The Prop 8 proponents surely left CA’s domestic partnerships in place b/c only they felt that they would lose if they eliminated all rights for gay couples. If they could have stripped us of everything, they would have.

Now they face the irony that they might have had a stronger constitutional case if they had eliminated all rights rather than make a linguistic change that furthered no legitimate state interest.


I am glad you aren’t practicing in this area. Your approach would be disastrous.


February 7th, 2012


could also help with Maine, right?

but then maybe not, since i don’t think their domestic partnership law is as comprehensive as Cali’s.


February 7th, 2012


Eh, that doesn’t sound great :/ I mean there’s still some states where Civil Unions are a possibility and Marriage isn’t (for the foreseeable future), I wouldn’t like them to now have this to throw against it :( Though I know CU’s aren’t popular anyway.


February 7th, 2012

Sorry Rob, I usually agree with you, but three big cheers. Pomo and Pliny are right. This is a very carefully written and narrow opinion designed to have the best chance of being affirmed by SCOTUS. I’d even say there is a slim chance the court will decide not to hear the appeal: it just applies where marraige was granted, where full DP or CU existed, only CA, and there is no disagreement among the Circuits. This will not help in WA or ME, since those laws have/will not go into effect before being referred to the ballot, but maybe in NH and IA.

Rob Tisinai

February 7th, 2012

Patrick, I’m reserving three cheers for a decision that doesn’t say:

“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.”

I mean, we’ve got to have SOME standards. (I’m sure there’s a great quote from the dowager countess that would apply; can anyone help me out?)


February 7th, 2012

How about this one, Rob?

“Don’t be defeatist, dear, it’s very middle class.” (Episode 2.08)

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