The Hopeful Demise of Proposition 8

Proposition 8 was a California ballot initiative that was passed on November 4, 2008; the very same night that Barack Obama was first elected President.  The crowning achievement of electing our first African-American President was sharply contrasted by this ballot measure that stripped same-sex couples of their constitutional right to marry.  The passage of Proposition 8 amended the California state constitution to read, “only marriage between a man and a woman is valid or recognized in the state of California.”  By limiting marriage to heterosexual couples, the measure overturned a California state supreme court decision which held that same-sex couples had a constitutional right to marry.  In re: Marriage Cases (2008), 43 Cal. 4th 757.

A basic understanding of constitutional law leads one to the conclusion that Proposition 8 cannot stand as it is unconstitutional on its face.  Although communities and states are permitted to enact laws they believe desirable, the constitution required there be at least a legitimate reason for the passage of a law that treats different classes of people differently.  There was no such reason for enacting Proposition 8.

The ballot initiative had only one effect:  it prevents same-sex couples from exercising an important right: the right to use the designation of marriage to describe their relationships.  Nothing more, nothing less.  Therefore, Proposition 8 could not have been enacted to advance California’s interest in childbearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise or have children.  Likewise, Proposition 8 had no effect on religious freedom or on a parent’s rights to control their children’s education.

A U.S. District Court and a Federal Appellate Court have both ruled that Proposition 8 is unconstitutional, albeit on different grounds.  The District Court held that the initiative deprives homosexuals of their fundamental right to marry as guaranteed by the due process clause.  The Appellate Court determined that Proposition 8 was unconstitutional because it “took away” the right of state-sponsored marriage to homosexual couples while allowing heterosexual couples that time honored status.  See Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012).

It is important to note that the 9th Circuit did not specifically find that same-sex couples have a fundamental right to marry.  Rather, the Court held that the voters of the state could not add to their constitution a clause that targeted a specific minority group.  This is a very subtle distinction, but one of great importance.

The proponents of Proposition 8 have petitioned the U.S. Supreme Court to hear the case and determine its constitutionality.  As of this writing, the U.S. Supreme Court has not decided whether it will accept the case for review.  If the matter is accepted, the Court will hold a hearing in the spring and render a decision by the end of June 2013.  If the Supreme Court declines to hear the case, however, the federal Appellate Court’s decision will stand which ruled Proposition 8 unconstitutional.  This would allow for the commencement of same-sex marriage in California within days of the Court’s decision not to hear the case.

In the near future, the U.S. Supreme Court must take up same-sex marriage and determine that this is a fundamental right.  Leaving such a significant civil rights issue to the voters and politicians is an affront to the constitution and the need to protect the rights of minority groups n this country.


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