The 9th Circuit Court Strikes Down Prop 8
Written by David Greenwald Wednesday, 08 February 2012 06:18
Legalistic Decision Tosses Prop 8 on Narrow California-Based Grounds
"Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couple alike," the Ninth Circuit Court of Appeals began in what will be a landmark decision, marking the first time a federal circuit court has ruled in favor of equal rights for same sex couples.
"On that day," the court continued, "the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry. We consider whether that amendment violates the Fourteenth Amendment to the United State Constitution. We conclude that it does."
The court continues, "Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted."
The court went on to argue that under California's statutory law, "Same-sex couples had all the rights of opposite-sex couple" regardless of their marital status, and thus, "Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State... the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less."
Judge Stephen Reinhardt, writing for the 2-1 majority, therefore argues that "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.' "
And with that, the landmark ruling makes the California's same-sex marriage ban unconstitutional, but stays the order, allowing the ban to remain in place while the proponents of Proposition 8 prepare to appeal.
Legal scholars argued that the narrow grounds of the ruling, which focused almost exclusively on California law and ignored the broader federal questions, may make it more difficult for the Supreme Court to rule on this matter.
Courtney Joslin, a UC Davis professor of law who co-authored an amicus brief, filed on behalf of 28 California family law professors in the litigation challenging Proposition 8, said on Tuesday, "One possible reaction to this opinion is that it is limited to the unique California history and because of that the court might feel that there's less of a need to grant review."
Columnist Dan Walters writes, "With liberal icon Stephen Reinhardt as its lead author, one might expect a three-judge appellate panel not only to strike down Proposition 8, California's 2008 anti-gay marriage measure, but to declare a fundamental constitutional right for gays and lesbians to marry."
"Had it done so, it likely would have invited another Supreme Court reversal," Mr. Walters continued. "Instead, Reinhardt - showing uncharacteristic constraint - sidestepped the larger constitutional rights issue cited in the trial court ruling."
Wrote the court, "We ... need not and do not consider whether same-sex couples have a fundamental right to marry."
Instead, they strike it down on much more narrow and legalistic grounds, Mr. Walters argues, "with words that seemed to be aimed at an audience of one - U.S. Supreme Court Justice Anthony Kennedy."
He notes: "Tuesday's ruling quoted extensively from a 1996 Kennedy-authored decree in Romer v. Evans, striking down an anti-gay rights ballot measure in Colorado as being unconstitutionally discriminatory. That decision was 6-3, but the Supreme Court has since evolved into a 4-4 tie between liberals and conservatives, with Kennedy often casting the decisive vote in contentious cases."
Elizabeth Gill of the ACLU's LGBT (Lesbian Gay Bisexual and Transgender) Project wrote, "The 9th Circuit is the first federal appellate court to rule that a marriage ban for same-sex couples is unconstitutional, and the decision is one for the history books as a watershed moment for LGBT equality."
She argued that it is important to focus on a couple of key aspects of the ruling.
"First, the court really got what marriage is all about - and why it's different from domestic partnerships," Ms. Gill writes.
As the court found, "The designation is important because 'marriage' is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name 'registered domestic partnership' does not."
"The court also got that the reasons for Prop. 8 cited by its proponents - responsible procreation, protecting religious freedom, and preventing children from being taught about same-sex marriage in school - actually have nothing to do with Prop 8. When the court says that 'simply taking away the designation of "marriage" ...did not do any of things its Proponents now suggest were its purposes,' the court means that, yes, the Yes on 8 folks lied to California voters," she continued.
"For all its inspiring rhetoric, however, the Perry decision doesn't decide marriage for everyone (even marriage for Californians is still subject to appeal and likely to end up before the U.S. Supreme Court)," she argues.
But then she points to the momentum generated by the work in other states, with marriage bills that are pending in Washington, Maryland and New Jersey; marriage will likely be on the ballot in Maine in November; and there are anti-gay marriage amendments proposed in Minnesota and North Carolina.
"The best thing we can do to support this case is to continue working for greater protections for LGBT families in as many additional states as possible," said Elizabeth Gill, staff attorney for the LGBT Project at the ACLU of Northern California. "We'll celebrate this ruling, and then put that momentum toward important battles we're facing this year."
Despite the perhaps legalistic and nuanced ruling, reaction was strong and overwhelmingly positive from marriage equality supporters.
"This is a wonderful victory not only for same-sex couples, but for everyone who values fairness and dignity for all families," said James Esseks, director of the ACLU's Lesbian Gay Bisexual and Transgender Project. "Same-sex couples want to marry for the same reasons others do - to make a solemn commitment to their partners and to protect their families. It's cruel for any state to bar them from marriage, and today's decision confirms that it's unconstitutional as well."
Attorney General Kamala Harris famously followed in the footsteps of her predecessor and refused to defend Proposition 8 in court - which triggered a lengthy discussion and ruling on standing that was cleared last month when the court allowed proponents to have standing to defend their own measures when the state apparatus refuses to.
"Today's ruling is a victory for fairness, a victory for equality and a victory for justice," said Attorney General Harris. "Proposition 8 denied to gay and lesbian couples the equal protection to which all Americans are entitled. By striking this unconstitutional law from our books, the court has restored dignity, equality and respect to all Californians."
Governor Brown, who refused to defend Prop. 8 both as Attorney General and Governor said simply, "The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision."
"Today, California is significantly closer to the basic civil right of marriage equality. Like all other civil rights struggles in our history, the work is never done. Every big step forward is a step closer to eliminating discrimination in our society," Senate President pro Tempore Darrell Steinberg said on Tuesday. "My hope is that any justices considering a potential appeal will exhibit the same level of courage we have seen today."
Senator Leland Yee commended the decision by the the Ninth Circuit Court of Appeals stating, "Today's 9th Circuit decision is another step forward in healing the wounds of government-sanctioned discrimination. It is long overdue for all loving relationships to be recognized and all families to be provided with the same rights, privileges and joys of marriage."
"By declaring Proposition 8 unconstitutional, the Court reaffirmed the highest ideals of our republic. For far too long, our nation has unfairly denied fundamental rights to individuals on the basis of sexual orientation - clearly violating the equal protection doctrine in our state and federal Constitutions," the Senator continued. "I look forward to the day when we can finally put aside these antiquated legal battles and start honoring all individuals based on the content of their character."
Yolo County Clerk Freddie Oakley, whose office has been in the spotlight on this issue due in part to her activism on behalf of same-sex couples, told the Vanguard on Tuesday, "I think it is important to understand that the 9th Circuit Court of Appeals, in upholding the lower court's decision, found that Prop. 8 is unconstitutional because it deprives a specific group of people of an existing right, thus denying them the equal protection afforded by the 14th amendment of the U.S. Constitution."
She added, "I certainly hate to think it would ever be acceptable to remove a right from a class of persons."
"I am a committed, serious-minded, Christian woman and I think: What if the people of California passed a Constitutional amendment depriving Presbyterians of our existing right to call ourselves a church? Would that be OK? Even if we could still get together and make a joyful noise and pray? To me, it would make a difference."
"So, thank you, 9th Circuit, for emphasizing the importance of protecting our rights. All of us. All our rights," she said but added more bleakly, "On the other hand, I still don't know when I'll be able to uphold a better marriage law than the one I am sworn to uphold, and do uphold. It seems like there is always more work to be done."
And that was the message of the day - it was a victory for those who support marriage rights, but it was not the end of the story and there is more work to be done.
As Assemblymember Mariko Yamada put it in a statement on Facebook: "The Reverend Dr. Martin Luther King, Jr. said, "The arc of the moral universe is long, but it bends towards justice."
She added, "Today, the 9th Circuit Court of Appeals has reaffirmed that belief."
---David M. Greenwald reporting
Jeff Boone said . . .
With all the discounting of the importance of two-gender parenting; with all the attention being paid to gay marriage; with all the snark about divorce rates, etc. related to traditional marriage... it feels to me and many others much more like traditional marriage is the thing being relegated to second class.
Jeff, the reason that the divorce rates are so high is that we (as individuals and as a society) have made a decision, ratified by our individual and collective actions, that traditional marriage is disposable. However, our individual and collective fear of loneliness (amongst other things) causes us not to simply send marriage to the land fill for permanent disposal, but rather to the recycling facility for reuse.
David, Oh that is what you meant. Now I fee bad for going off on you about your bubble.
Okay, so that was a bad example.
There are lots of other examples.
So, let's assume for the moment that I live in a bubble and don't know enough about all the SOP changes that have already been made to accomodate gay parents. That only strengthens my argument about there being a difference. It is enough of a difference to warrant a different label, IMO.
Jeff Boone said . . .
"Thinking it through, if private entities (e.g., churches) continue to treat gay marriage as different, then what have you really accomplished legalizing gay marriage versus making civil unions equal? You have accomplished only a symbolic win... but at the expense of a greater culture rift."
Jeff, the answer to that question is very, very simple . . . you have gotten Government out of the marriage business, and invested the management and maintenance of the marriage business to private organizations/communities.
Jeff Boone said . . .
"I have a database design and programming background.
It should be
If CIVIL UNION, then do this; else if MARRIED do this.
And not
If MARRIED and GAY and FEMALE, then do this; else if MARRIED and GAY and MALE, then do this; else if MARRIED and STRAIGHT, do this."
No Jeff, the Governmental logic statement should be
If CIVIL UNION, then do this; else do that.
--------------------------------------------------------
Each private cultural/social organization/community will have a different logic statement
If MARRIED (according to our private parameters), then do this; else do that.
Jeff Boone said . . .
"I once had a pet goat that thought it was one of my pet dogs. It would hang with the dogs and play with the dogs. If it could have talked, I'm sure it would have preferred to be labeled a dog."
Jeff, there is a reason that http://en.wikipedia.org/wiki/Babe_(film) was so compelling
"Jeff, the reason that the divorce rates are so high is that we (as individuals and as a society) have made a decision, ratified by our individual and collective actions, that traditional marriage is disposable. However, our individual and collective fear of loneliness (amongst other things) causes us not to simply send marriage to the land fill for permanent disposal, but rather to the recycling facility for reuse."
Matt, this is strong food for thought.
Based on my personal and family life journey, my head has been deep in the family/marriage/divorce domain.
With all my experience and thinking, research on these topics, I consider a long-term traditional marriage with children where the children are loved and cared for to be the gold standard. Next to that is any situation where a mom and dad participate and are fully engaged in their children’s upbringing/development. After that we have a plethora of alternative family situations where a loving and caring set of: same-sex parents, a single parent, aunts, uncles, grandparents, etc., etc., etc. can do a great job providing meeting most of a child’s needs.
I think long-term (hopefully life-long, but at least until the children are developed into adults) marriage between a man and woman is always something we should hold in high regard and strive for. Just because it so often fails is no reason to “send it to the land fill”. Some people get lucky finding their soul mate. But more often than not, it is their upbringing and perspective about marriage and family, and their decisions and behavior related to that institution that are more directly related to its record of brevity or longevity.
Here is what I would like to see related to marriage… all of them require a legally-binding contract with termination for cause clauses, and required remediation of conflict. I would also support incentivizing the completion of a marriage class with a tax credit. Then incentivize another class for having children… possibly link that proof of class to the dependent exemptions on the tax form. My business brain can justify the resulting tax hit by calculating the real societal cost of broken marriages and crappy parenting.
Marriage is a partnership that is well-served by skills that most people do not naturally have. Those skills can be developed. One of the primary skills is communication. A partnership agreement would force much upfront communication which would serve to reduce the potential for misunderstandings. Parenting is also not a completely natural thing. Parents need to learn skills to be better parents.
Jeff, I realize you were being humorous, but in all humor there is an element of truth. The good news is that the truth in this case is that a polygamous union would always go to the else portion of the If; else statement.
Off topic: You and Mark West and Michael Bisch and I were going to try and get together to talk a while back. That never happened. I would still like to do that if you still want to do it.
Jeff Boone said . . .
"Matt, this is strong food for thought.
Based on my personal and family life journey . . . . . . Parents need to learn skills to be better parents."
Based on what you have said above, I actually think you and I are not very far apart. I am once divorced and now very happily married for 13 years after a 14 year "engagement." I think the biggest enemy to marriage is not how easily (or not easily) we can get out of marriage, but rather that we do such an inadequate job of "picking" our spouses. IMHO, ideally the two marrying parties should be one another's bes friends. Unfortunately, I think all too often the two marrying parties are barely friends at all. That to me is a recipe for the disasterous marital situation we are currently living through.
Matt, Yes - getting to gether for lunch or after work sounds great. We could even meet at Mark's business and try some of his great wine. I met both Mark and Michael in person (different events) and neither hit me over the head, so they might still be up for a friendly get together. I have a few business trips here and there over the next couple of months, but I can work around them. email is This e-mail address is being protected from spambots. You need JavaScript enabled to view it '> This e-mail address is being protected from spambots. You need JavaScript enabled to view it .
There are any number of specific rights that gay people cannot acquire unless they are enumerated in the civil unions you are proposing. Visitation, medical decisions, inheritance, tax filings, adoption rights, and much more.
Here are examples of the rights gays gain when their marriages are legal (New York state):
http://bucks.blogs.nytimes.com...ial-lives/
What is the point in enumerating those rights so that a "marriage" and a "civil union" are exactly the same? And if they aren't enumerated, then how can the status be equal?
Matt, I am lucky. I got married when I was 23 and have been married to the same woman for 29 years. We lived together for three years before getting married because I wanted to be sure. As an aside, you can guess what that meeting with her parents was like telling them their 18 year old, just graduated, daughter was going to move in with her 20 year old boyfriend that she had been dating for less than a year. Note that her dad is a retired Captain of the Davis PD and was a Sergeant at the time. Now that was scary!
Like most long-married couples, we have had our share of ups and downs. My wife is wonderful… mostly because she is, but also because she periodically lies and tells others I am wonderful! Go figure?
I agree with you that careful selection is important. However, this same sentiment can also cause problems with the “grass is greener in another pasture” syndrome. In fact, I see this drive to find something or someone better as the thing wrecking many marriages.
I do agree that you should be best friends with your spouse. Strangely though, I am aware of marriages that seem to work even though you would swear that the couple dislikes each other.
I think a big missing component of marriage these days – and may other things in modern life – is commitment. I see marriage as having made a commitment to my wife and myself and my family to stick it out as long as possible, and to work as hard as possible to make it work and make it last. I joke that as a business man I would never consider divorce because it is a terrible financial decision. Just like turning around a company, there can be a great reward for turning around a marriage… in both cases, we can come out of it much richer and much stronger. However, sadly, sometimes dissolution is the right thing to do.
Considering that, I need to get home and make dinner! =)
In 2008 Prop-8 passed with 52% of the vote.
The most recent Field Poll shows 51% of CA voters support allowing gays to marry.
However, when offered the choice of civil unions OR gay marriage, only 44% of the voters favored allowing gays to marry.
Given this, and the margin for error in the field poll, gay rights activists demanding the right for same-sex couples to marry have no choice but to take it to the courts. This is a big gamble because if the US Supreme Court overturns the 9th Circus Court - as it has frequently done - gay rights activists will have set back their agenda by years.
Might a better approach be to push for civil unions that provide the same public and legal rights?
"With all my experience and thinking, research on these topics, I consider a long-term traditional marriage with children where the children are loved and cared for to be the gold standard"
Jeff,
I think this sentence sums up nicely the reason that gays perceive the need for equality in terms of the use of the term marriage. Using the term civil union does not establish a separate but equal status. It establishes a separate and inferior status for gays. As in your own sentence, if
Traditional marriage is the "gold standard" then everything else is by definition inferior. Now I know this is your opinion. That does not mean that it should be enforced by law. Individual words do matter. Marriage as we use it today implies a commitment that is not implied by the words "civil union". If this were not true, then there would be no fight over this issue.
For equality to truly exist, it must be reflected in both our words and our actions. Would anyone seriously think that if we allow all people to sit anywhere on the bus and to use any restroom or soda fountain but were to continue to call one visible group by what we consider a clearly perjoratives term, that we had established equality ? Probably not, but that is what you are arguing for here.
"We are talking about the classification of an important legal and social partnership entity. Gay marriage does not compare... at all... not even close. Nobody is advocating separate rest rooms and back of the bus seating for gays. Gay marriage has no connection to hate crimes or bias against homosexuals. The vast majority of people that oppose gay marriage, support civil unions that provide gay couples all the public and legal rights and privileges provided traditional married couples.
Let's be intellectually honest here.
What you and others object to is simply the social and cultural separation. That can only be an emotional-base argument. Would civil unions and marriage be considered different by society even while they were equal in terms of public benefits and law?... absolutely. You and others don't have viable rational arguments against the civil union solution.
Jeff
I agree that we should be intellectually honest. Your contention that nobody is advocating for second class citizenship for gays is demonstrably not true. All three of the major Republican candidates have argued forcibly for the frankly discriminatory policy Don't Ask, Don't Tell. This policy creates two distinct and unequal groups within the military. One group allowed to place their life partners picture on their desk, one not. One allowed to hold their partners hand or embrace in public, one not. It is their career that is at risk, not some subjective or emotional concern.
. This is clearly a matter or issues other than just emotional impact. To prretend that these positions by no less than presidential candidates are either non discriminatory, or not in any way related to the issue of gay marriage is, in my opinion, completely lacking in intellectual honesty.
Below is an interview statement by a Mr. Cohen, a gay rights activist, offered yesterday on Democracy Now.
"Cohen, meanwhile, is critical of the LGBTQ community’s emphasis on gay marriage, saying, "My biggest concern is how much resources in the LGBTQ movement have been funneled towards marriage equality alone, and away from basic survival [issues] that a lot of LGBTQ people still face, such as lack of access to education, healthcare, housing and criminal justice reform. And these are issues that have really taken a backseat to marriage equality, and that has harmed the most vulnerable members of our community."
There is a body of gay activists who recognize(and embrace) the difference between same-sex relationships and heterosexual relationships and see obtaining equal rights to substantive issues as the priority issue that must be addressed, not claiming the term,"marriage" for their own.
The courts are the mechanism for securing full substantive civil rights for Civil Unions if legislatures do not offer them and in the courts, IMO, this path would UNDOUBTEDLY be successful. This is the path that black Americans and women took in obtaining full and equal substantive civil rights without demanding the same word description(white male) of those who already had those rights.
I think a big missing component of marriage these days – and may other things in modern life – is commitment. I see marriage as having made a commitment to my wife and myself and my family to stick it out as long as possible, and to work as hard as possible to make it work and make it last. I joke that as a business man I would never consider divorce because it is a terrible financial decision. Just like turning around a company, there can be a great reward for turning around a marriage… in both cases, we can come out of it much richer and much stronger. However, sadly, sometimes dissolution is the right thing to do.
Well said!
Medwoman, I find the "second class" argument telling because I perceive this push for gay marriage as the being the wrong solution for a particular common problem. I think this problem is similar to some racial issues we debate. Note that they are perpetual issues despite all our civil rights laws, affirmative action, etc., etc.
I am basing my theory my own personal life experiences, and my observation of gay people I know, combined with my assessment of how I might think and feel in their shoes.
I see a demonstrated level of personal insecurity. Of course it is natural for people to want to feel accepted and included in the larger social group. It is also understandable that a gay person might feel less accepted and included. I have empathy for this. However, this is not a situation exclusive to just gays and minorities. Most people struggle with these feelings at points in their lives.
The fact is that humans are tribal. We need to have some common social and cultural norms that bind us and make us feel grounded and allow for some basis of assumption that help us function and conduct our lives and business. Our laws and rules need to value our cultural norms and protect the health and wellbeing of the tribe. Our laws and rules also need to protect the rights of the individual.
This gets me to the point I want to make: we should not, and frankly cannot, legislate changes to our social and cultural norms only to make certain categories of individuals feel more secure and accepted (read: more happy).
We should protect all individuals – regardless of their categorization – from material harm. But sadness, frustration, longing, yearning, anger… these are not material things. They cannot be quantified because they are individual emotions. They are emotions that all people will experience from time to time despite their membership in a politically-correct protected group… or not.
The arguments supporting gay marriage are all in the emotional domain. There is absolutely no material harm that cannot be solved with well-constructed laws supporting civil unions. It is because the arguments are in the emotional domain that I completely expect the march to continue toward attacking private religious institutions. Those that deny this are being intellectually dishonest, or possibly lack the emotional intelligence to make the connection.
If try to legislate to correct for our citizen’s negative emotions, it becomes a new and perpetual expectation and entitlement that is dysfunctional and detrimental. Lacking evidence of material harm, it should be made clear that solving the problems of insecurity and feeling accepted and wanted are individual responsibilities. We need to grow strength in our citizens to cope and persevere and learn how to create their own happiness.
As risk of offending some of my liberal friends, I see common indication of higher levels of emotional sensitivity combined with some deficiency for processing emotions. It is an “I feel it, so it has to be real” approach. It manifests into a sort of “savers syndrome” where sensing the negative emotions in others becomes a call to action to provide a protective shield.
We are only to protect “the pursuit of happiness”, not actually legislate to “ensure” happiness.
I think the tears shed by those lamenting the inability of gays to marry are a distraction. They are more likely a proxy for other personal sadness’s yet unresolved. Let’s use our heads for this. If marriage represents love and commitment, we do not need marriage to pledge love and commitment. There a many couples that love each other and are committed to each other without being married. If any gay person feel like a second class citizen, being able to claim the “married” label will at best be a temporary drug to mask their deeper emotional problems feeling secure and accepted. Once that euphoria wears off they will be looking for the next drug and it will be private religious organizations. We do not want this culture war to occur.
Jeff
If you feel that it is wrong to have laws to protect people from negative feelings, then why would you defend discriminatory laws that are designed to protect people's feelings of insecurity when they feel that their religious and traditional beliefs are being threatened. Why not have laws that give every one exactly the same rights and protections ?
Jeff:
Sorry, I have been buried in work and have purposely stayed away from the discussion. I think the simple solution is to have the civil authorities get out of the marriage business and have the rights be based solely on civil unions. Marriage would then be the province of religion alone and would have no civil meaning. The problem is that the Federal Government would need to accept this before it would be truly equal. As long as married opposite-sex couples have civil rights that are not available to same sex-couples then the situation is separate but not equal.
Contrary to your assertion, I do not support polygamy per se, I just don't view it as a moral problem, and I certainly don't think it has any impact on my marriage. As I said, I do have a problem with the forced marriage of underage women that is inherent in many polygamous social groups. That is a very different situation than a group of adults who knowingly choose to live together as a group. The right to marry should be restricted to adults, period.
In the end, I think the government should simply get out of the relationship business.
As for your arguments about what is best for children... I have raised two biological daughters to maturity and have four underage adopted children. My nearly nine years as a Foster/Adopt parent has provided me with access to a great deal of information and experience that I didn't have while raising my biological daughters. Simply put, while I think that a stable biological family is the best situation for children, a loving and stable foster/adopt family, regardless of the sexual orientation of the parents, is far better than being raised in a group home or aging out of the system without support. I don't know the current statistics, but your contention that there are sufficient heterosexual couples to adopt all the foster kids in the State is simply wrong. There really is no competition for kids as there is in fact a paucity of available adoptive families. You may wish that not to be true, but as they say, 'if wishes were fishes...'
Matt Williams: Off topic: You and Mark West and Michael Bisch and I were going to try and get together to talk a while back. That never happened. I would still like to do that if you still want to do it.
Jeff: Matt, Yes - getting to gether for lunch or after work sounds great. We could even meet at Mark's business and try some of his great wine. I met both Mark and Michael in person (different events) and neither hit me over the head, so they might still be up for a friendly get together.
Yes
