(Cross-posted with COMAR LAW.)
The United States Court of Appeal for the Ninth Circuit today affirmed the judgment of a federal trial court in striking down California’s same-sex marriage ban “Prop 8″. Perry v. Brown, No. 10-16696 (9th Cir. Feb. 7, 2012).
But the court refrained from deciding the broader question as to whether the Constitution requires that marriage be open to gay and lesbian couples.
Instead, the court decided the more narrow question whether Prop 8 violated equal protection of the law under the Fourteenth Amendment to the Constitution.
Under the Equal Protection Clause, a law that distinguishes people into different categories must have a rational basis to a legitimate government purpose.
In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court held that a law that serves only to discriminate against disfavored groups was not a legitimate use of state power. “A law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense.” Id. at 633.
Romer involved an amendment to the Colorado Constitution that prohibited the state from enacting laws to prohibit discrimination against gays and lesbians. The Supreme Court struck down the amendment.
The Ninth Circuit relied on Romer in striking down Prop 8. ”The People may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.”
Prior to Prop 8, the California Supreme Court had recognized that marriage was a fundamental right possessed by all Californias, straight or gay. Accordingly, when Prop 8 was passed, it put in place a new rule of constitutional law, the only effect of which was to deprive a targeted minority of rights they had possessed.
The Ninth Circuit looked at the four possible reasons offered for the legitimacy of Prop 8: (1) furthering an interest in childrearing and “responsible procreation”; (1) proceeding with caution in changing the institution of marriage; (3) protecting religious freedoms and (4) preventing children from being taught about same-sex marriage in schools. None of these goals were actually met by Prop 8, and could not act as a rational basis for the law.
In fact, the only effect of Prop 8 was to “withdraw from gays and lesbians the right to employ the designation of ‘marriage’ to describe their committed relationships and thus to deprive them of societal status that affords dignity to those relationships.” The effect of Prop 8 is “so far removed from these particular justifications that we find it impossible to credit them.”
The Court had the opportunity to discuss whether the Due Process Clause of the 14th Amendment to the Constitution provided a “fundamental right to marry” to which gay and lesbian couples were entitled.
It declined to do so, however, since its analysis only hinged on the purpose of Prop 8. “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.”
