marriage equality

By Rebecca L. Brown, Newton Professor of Constitutional Law at USC Gould School of Law. She is the author of the 2010 ACS Issue Brief, “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role.”

The Ninth Circuit did a great job this week in deciding the Perry case, involving the constitutionality of Proposition 8 — not only because of the result it reached, but because of how it got there. I think the court did a great service to the plaintiffs in Perry (as well as those similarly situated), to the state of California, and to the Constitution itself. I say this because the court focused very carefully and narrowly on the facts of the particular case, and did not yield to the temptation, always present in a sensational case, to be dramatic, to exaggerate, or to stretch the law. Instead, in my view, the court did exactly what we want a court to do when faced with any Equal Protection challenge:  to consider very carefully the interests that the state offers in support of its unequal treatment of some of its people, and to insist that those interests be both genuine and closely tied to the law under attack. 

On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage.  The court found none.

by Jeremy Leaming

In a striking, though perhaps short-lived, victory for marriage equality, a federal appeals court panel invalidated California’s infamous Proposition 8, a ballot initiative that had overturned same-sex marriage in the state.

The U.S. Court of Appeals for the Ninth Circuit ruled 2 -1 today that the anti-equality measure “served no purpose, and no effect, other than to lessen the status and human dignity of gays and lesbians,” the Los Angeles Times reports. The Ninth Circuit majority concluded that Prop. 8  subverts the U.S. Constitution’s equal protection clause.

Prop. 8 was passed, with the backing of religious right organizations, not long after the California Supreme Court ruled that a right to wed could not be denied to same-sex couples, and that doing so would violate the equal protection rights of lesbians and gay men. Prop. 8 amended the state constitution to bar same-sex marriage.

The majority opinion in Perry v. Brown, written by Judge Stephen Reinhardt (pictured) upheld a lower federal court ruling by retired federal judge, Vaughn R. Walker, which invalidated Prop. 8.

“Proposition 8 worked a singular and limited change to the California Constitution: it stripped same-sex couples of the right to have their committed relationships recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them, while leaving in place all of their other rights and responsibilities as partners – rights and responsibilities that are identical to those of married spouses and form an integral part of the marriage relationship,” Reinhardt wrote.

Prop. 8 also resulted in an ignoble state constitutional rule that protected marriage only for straight couples, Reinhardt said.

“In adopting the amendment, the People simply took the designation of ‘marriage’ away from lifelong same-sex partnerships, and with it the State’s authorization of that official status and the societal approval that comes with it,” Reinhardt wrote.