February 7, 2012
Ninth Circuit Rules In Proposition 8 Case
The Ninth Circuit Court of Appeals ruled today affirming the District Court’s decision to strike down the amendment to the California Constitution that took away the right to marry from same-sex partners. Stating the decision that way is in line with the rationale that the Court used in coming to its decision. The Court relied on similar precedent in Romer v. Evans, 517 U.S. 620 (1996) where the Supreme Court struck down a Colorado amendment that invalidated anti-discrimination laws that protected homosexuals. The Ninth Circuit said there was no legitimate right to take away the right to marry from same-sex partners which previously existed until Proposition 8 amended the California Constitution.
When directly enacted legislation “singl[es] out a certain class of citizens for disfavored legal status,” we must “insist on knowing the relation between the classification adopted and the object to be attained,” so that we may enure that the law exists “to further a proper legislative end” rather than “to make the [class] unequal to everyone else.” Romer, 517 U.S. and 632-33, 635. Proposition 8 fails this test. It’s sole purpose and effect is “to eliminate the right of same-sex couples to marry in California”—to dishonor a disfavored group by taking away the official designation of approval of their committed relationships and the accompanying social status, and nothing more. Voter Information Guide at 54. “It is at once too narrow and too broad,” for it changes the law far too little to have any of the effects it purportedly was intended to yield, yet it dramatically reduces the societal standing of gays and lesbians and diminishes their dignity. Romer, 517 U.S. at 633. Proposition 8 did not result from a legitimate “Kulturkampf” concerning the structure of families in California, because it had no effect on family structure, but in order to strike it down, we need not go so far as to find that it was enacted in “a fit of spite,” Id. At 636 (Scalia, J., dissenting). It is enough to say that Proposition 8 operates with no apparent purpose but to impose on gays and lesbians, through the public law, a majority’s private disapproval of them and their relationships, by taking away from them the official designation of ‘marriage,’ with its societally recognized status. Proposition 8 therefore violates the Equal Protection Clause. (Slip Op. at 76-77)
The Ninth Circuit considered the issue of former Chief Judge Walker’s disclosure upon retirement that he was gay and was in a committed relationship with another man for the preceding 10 years. The matter was referred to Chief Judge Ware at that point in the lower court’s proceedings in consideration of a motion to vacate the judgment. The Ninth Circuit affirmed the decision not to vacate as not violating abuse of discretion.
Judge N.R. Smith concurred in the ruling to the extent that he agreed that the Proponents of Proposition 8 had standing to appeal and that the issue on the motion to vacate the judgment was correctly decided. He dissented, however, on the validity of Proposition 8 in that the California Supreme Court had upheld it prior to the action in this case.
The case is Perry v. Brown and it is likely to go to the U.S. Supreme Court. Get ready to Constitutionally rumble. [MG]