Proposition 8 ruling could have lasting success
Last Tuesday, the U.S. 9th Circuit Court of Appeals ruled, in a 2–1 decision titled Perry v. Brown, that California Proposition 8 — the 2008 “ballot measure” that limited marital relationships to opposite sex — was unconstitutional. Proposition 8 drafters claimed that they will appeal to higher courts, as expected.
Gay marriage freedoms in California have fluctuated, to say the least, throughout the years.
Before the introduction of Proposition 8 on Nov. 5, 2008, California boasted its title as the second state to allow gay marriage — regardless of the right’s four-month duration. The proposition, upon passing, trumped the state court’s ruling that allowed gay marriage.
This recent decision is different from past legislation opposed to Proposition 8 in that it may actually work.
Many legal analysts predict that the ruling will be appealed to the Supreme Court, and will be picked up next term. As Andy Pugno, the general counsel, stated in a letter to Proposition 8 supporters earlier this week, “The 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage, but it really doesn’t come as a surprise, given the history of the 9th Circuit, which is often overturned.”
What differentiates this present decision is that the scope of the ban lift was more narrow this time around. It looks solely at the issues of Proposition 8 in recognizing the title of gay marriage and does not, according to the appeals court, extend to the controversy over whether or not same-sex couples may be denied the right to marry in the future.
With the ruling most likely being appealed to the Supreme Court, there are two possible outcomes.
Because of the limited controversial nature of the ruling, it is likely that even Republican justices will rule in favor. It is also likely that Justice Anthony Kennedy — classified as the swing vote because he is the only moderate in the Supreme Court — will rule in favor of this narrow judgment.
Regardless of the route that the appeals ruling takes, I predict a favorable outcome because of the 9th Circuit’s smart legislative thinking in constructing a narrow ruling.
The new ruling specifically stated that Proposition 8’s sole objective “was to lessen the status and human dignity of gays and lesbians in California,” which runs against constitutional protections, the 14th Amendment being the lead constitutional precedent.
Unlike other 9th District legislation on gay marriage, the recent action is limited to California, even though the 9th District Court has jurisdiction in other states. This, in itself, makes it more unlikely for the Supreme Court to reject the ruling.
As Judge Stephen Reinhardt wrote in the majority opinion, “California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage’.... Proposition 8’s only effect was to take away that important and legally significant designation.” He then explained the nature of Perry v. Brown. “This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds,” Reinhardt said.
For now, Proposition 8 is unconstitutional in California. That in itself justifies celebration. However, the ruling represents a larger triumph. Finally, after a history of tumultuous rulings, California is beginning to understand that Proposition 8 is not simply an affront to gay marriage, but a violation of basic civil rights.
Due to the differences in the current ruling from the past attempts to legalize gay marriage in California, future success in the movement is more attainable now than ever before.