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February 9, 2012

Ninth Circuit Concludes Proposition 8 Is Unconstitutional

In Perry v. Brown, released this week, the United States Court of Appeals for the Ninth Circuit upheld a lower court decision concluding that California’s Proposition 8, a voter-initiated amendment eliminating same-sex marriage under the state constitution, violated the U.S. Constitution’s guarantee of equal protection of the laws.

Back when Governor Arnold Schwarzenegger was the defendant, the U.S. District Court found California had no rational basis for depriving same-sex couples the right to marry. The court held a lengthy trial on the matter, allowing for the development of an elaborate factual record; relying upon that record, he concluded the opponents of same-sex marriage had not demonstrated that the marriage discrimination wrought by Proposition 8 had any basis other than an animus against same-sex couples.

The Court of Appeals panel in Perry arguably ruled even more narrowly in its decision: the majority confined its analysis to the question whether a rational basis justified eliminating same-sex couples from eligibility for the status of “marriage,” when that designation had previously been accessible to them under the state constitution, and the amendment did nothing to change the law granting these couples equal access to all the same rights, responsibilities and incidents of marriage possessed by opposite-sex couples. Indeed, the majority took pains to explain what it did not decide—namely, whether under the Fourteenth Amendment same-sex couples enjoy a fundamental right to marry, or whether sexual orientation constitutes a suspect classification.

The Perry holding is narrow because its application is effectively limited to California, where same-sex couples had a state constitutional right to marry that was eliminated by subsequent amendment. It remains an open question whether a state law defining marriage as exclusively between opposite-sex couples violates the Constitution, though several state courts, beginning with the Massachusetts Supreme Judicial Court, have concluded that such laws violate state constitutional equality protections.

Also open is the question whether there is enough here to interest the U.S. Supreme Court. The proponents of Proposition 8 have already said they will appeal the Court of Appeals decision, but the high court may decide it is not ready to address the issue of same-sex marriage in the context of the unique circumstances of California law. Other challenges to same-sex marriage prohibitions are working their way through the federal courts and may present better cases for the Supreme Court to address the issue.

For now, the Court of Appeals decision provides some additional support for the argument that same-sex marriage prohibitions are animated by little more than disapproval of same-sex couples, which may not be sufficient to justify them when the Supreme Court eventually weighs in.

Lawrence Friedman