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News & ArtsTuesday, February 7, 2012
Gay Marriage A Copy of the 9th Circuit's Opinion on Prop 8, a Summary of What It Says, and a Big Question Regarding Washington State's Upcoming Gay Marriage Referendum
Posted by Eli Sanders on Tue, Feb 7, 2012 at 10:46 AM
Here's the opinion, and here's a very helpful "case summary" provided by the 9th Circuit.
Interestingly, the 9th Circuit did not rule on whether gays and lesbians have "a fundamental right to marry" under the U.S. Constitution. Here's what it did decide:
The panel majority held that by using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the People of California violated the Equal Protection Clause.
Proposition 8’s only effect was to take away that important and legally significant designation of “marriage,” previously recognized by the California Supreme Court, while leaving in place all of its incidents. The panel majority determined that in taking away the designation of “marriage,” while leaving in place all the substantive rights and responsibilities of same-sex partners, Proposition 8 could not have reasonably been enacted to promote childrearing by biological parents, to encourage responsible procreation, to proceed with caution in social change, to protect religious liberty, or to control the education of schoolchildren.
The panel majority concluded that Proposition 8 served no purpose, and had no effect, other than to lessen 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.
Which raises an important question here in Washington State: Since our state is within the 9th Circuit's jurisdiction, does this ruling mean that a promised referendum to specifically repeal gay "marriage" in Washington this fall—"while leaving in place all of its incidents," to use the 9th Circuit's words—would likewise be unconstitutional?
UPDATE: Zach Silk, spokesman for Washington United for Marriage, says his group is still analyzing the decision and its potential consequences, but: "It is certainly a very powerful ruling and has direct implications for what we are doing here in Washington."
And State Representative Jamie Pedersen (D-43) says:
I am very happy to read the decision in the Perry case. The Ninth Circuit's narrow ruling creates a much stronger possibility that the case could be resolved favorably by the US Supreme Court. If the Supreme Court upholds the reasoning of the Ninth Circuit, the decision could be a powerful tool for advocates of equality in states that get stuck at "everything but marriage." That said, I am proud that Washington State appears to be on a path to achieve marriage equality through the political process well before the final resolution of the Perry case—as long as we do our work over the next 9 months.
The Court is excruciatingly careful to note that it makes no statement or holding relating to the fundamental rights of same sex couples to marry the person of their choosing or whether a state's continuing denial of marriage equality to their gay/lesbian citizens violates the 14th amendment. Romer v Evans is the guiding light here, not Loving v Virginia.
However, its a pretty short jump from this decision to a court holding that "a Washington referendum that removes marriage rights from gays and lesbians after they've already been granted will be unconstitutional".
3
Interestingly, this could also present the grounds for an effort to block marriage equality from going to the ballot at all here in WA this fall.
For instance, a court may consider the fact that there were no marriages under the WA law (assuming it passes, assuming the referendum to repeal it succeeds) as being materially different from Prop 8 where there were 18k+ marriages before Prop 8.
However, the basic framework remains the same: when a popular vote acts to disadvantage a discrete segment of society, there has to at least be a rational basis. "the people voted" does not end the inquiry. This decision gives marriage equality supporters serious ammunition in the ensuing court fight.
10
Procedurally, wouldn't someone have to sue to keep the referendum off the ballot? Also, I'll be curious if anyone asks Rob McKenna how this ruling will or will not inform his drafting of the referendum language.
11
The Court made very clear that the reason Prop 8 violated the Constitution, relying heavily on Romer v. Evans, was because it took away a right that had already been in effect at the time of the vote.
In fact, they go so far as to point out that the only reason the Court could come to this conclusion in the very narrow ruling they wrote was because marriage came before Prop 8. Accordingly, Prop 8 was drafted solely to take away the right to marry.
Washington's referendum process puts a hold on a law until the vote is certified. Accordingly, a referendum on gay marriage would not violate Perry v. Brown because there would be no rights given then taken away.
12
Sounds like it's the same Catch22. You can only call the denial of Civil Rights unconstitutional if you once enjoyed that Civil Right. But you've been denied that Civil Right via a referendum. Hence the denial is not Un-constitutional.
13
The Ninth rocks. Always has.
This case isn't over, it is theoretically possible that the en banc 9th circuit or the supreme court could decide to take on the fundamental equal protection and due process arguments being put forth by Prop 8's opponents that all attempts to deny same sex marriages are unconstitutional.
I heard it mentioned that opponents might skip a hearing from the full court and appeal directly to the Supreme Court to hear an appeal. I wonder what would have should the Supreme Court refuse the appeal. could they go back and ask for a full hearing from the 9th Circuit? Or would they have lost their chance. I really doubt the Supreme Court is anxious to hear this case.
19
At page 40 and 41, the issue of Marriage Cases and the effect that they had by going first, and allowing what Proponents called a "143-day hiatus" is directly addressed, with discussion of that effect on California law.
Further, the Court delves into what Prop 8 was designed to do - "eliminate the right of same-sex couples to marry in California."
Then, on page 42, the Court makes clear that they have to decide the case on the facts, and the timing of Marriage Cases and Proposition 8 are important.
However, upon review, I agree that it is not clear whether Marriage Cases (for those who are not aware, this is the case that declared California's DOMA unconstitutional under the State Constitution) is the important event, or whether the issuance of marriage licenses is.
On that level, an argument could be made that, even without the law taking effect, the mere passage of the law, followed by the signature of the governor, is enough to consider repeal an elimination of a right, even if that right has not yet been realized.
20
It's great to be witnessing all these historic rights-affirming events... as bigotry, exposed to the cleansing power of BRIGHT LIGHT, continues to wither and die on its nasty-vine...
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