Artvoice: Buffalo's #1 Newsweekly
Home Blogs Web Features Calendar Listings Artvoice TV Real Estate Classifieds Contact
Next story:
Previous story:

Prop 8 Unconstitutional

Filed under: LGBT
Tags: , , ,

Yesterday, the 9th Circuit (Federal) Court of Appeals ruled that California’s Proposition 8, which re-prohibited same sex marriage in that state, is unconstitutional.

What people forget is that a lawsuit filed in San Francisco led to the California Supreme Court ruling that the state’s prohibition against same-sex marriage was unconstitutional (based on the California state constitution).

Secondly, California’s highest court determined that reserving the term “marriage” only for heterosexual couples was violative of that state’s equal protection clause.

Two same-sex couples who were denied marriage licenses in California counties brought a federal action, a 12-day bench trial was held, and the Federal District Court ruled that Prop 8 was unconstitutional – that there was no rational basis or compelling state interest for the state to withhold the term “marriage” from same-sex couples.

Because Proposition 8 did nothing to substantively alter the underlying relationship or domestic partnerships into which California same-sex couples had committed themselves. Instead, it simply took from them the word “marriage”. But the court didn’t point this out to diminish the matter, but to highlight it. “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 of ‘registered domestic partnership’ does not. The word ‘marriage’ is singular in connoting ‘ a harmony in living,’ ‘a bilateral loyalty,’ and ‘a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.'”, citing the U.S. Supreme Court’s ruling in 1965’s Griswold v. Connecticut, which declared the existence of a federal right to privacy and struck down prohibitions against contraception.

In the end, the court found that constitutional jurisprudence does not permit the people to “enact laws” that “single out a certain class of citizens for disfavored legal status” thus raising “the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.” The purpose of such a law isn’t to promote some “legitimate legislative end”, but “to make them unequal to everyone else.”

In order for a law like Prop 8 to stand, with all of its “meaningful harm to gays and lesbians”, some “legitimate state interest” must justify it. More specifically, “it” isn’t whether the legal state extant post-Prop 8 was constitutional or not – the question is whether the change that Proposition 8 made in the law could be justified, in and of itself.

The U.S. Supreme Court had decided cases going back to the 60s forbidding states from a “targeted exclusion of a group of citizens from a right or benefit that they had enjoyed on equal terms with all other citizens.” A right conveyed cannot later be withdrawn without a legitimate state justification.

The court analyzed the purported “justifications” for Prop 8 and found them illegitimate. For instance, Prop 8 proponents claimed that only heterosexual marriage was good for childrearing, but the law didn’t substantively affect same-sex couples’ right to have or adopt children. The court also went out of its way to destroy the Prop 8 proponents’ arguments that taking away the use of the term “marriage” from same-sex couples will promote responsible procreation by heterosexual couples.

The court found that Prop 8 existed as “nothing more or less than a judgment about the worth and dignity of gays and lesbians as a class.” Indeed, the court found that Prop 8 was born and promoted from a fundamental disapproval of homosexuals and from homophobia – that same-sex couples are inferior, and that their relationships are undesirable. The 9th Circuit concluded saying that the people of California violated the Equal Protection Clause by using their initiative power to target a minority group and illegitimately withdrawing a right that they possessed.


Email tips, etc to this address.


  • Jesse

    Where are right-wing haters on this one?

    Good for the court in CA.

  • Jim

    Probably waiting for all the left wing haters to chime in first.