The federal case decided today, Perry v. Brown, presented a interesting factual pattern. Prior to the enactment of Proposition 8, the California legislature had enacted, through a series of laws, protections affording gays and lesbians in committed relationships the right to enjoy essentially all the indicia and benefits of marriage in the form of "registered domestic partnerships." In an earlier voter initiative, Proposition 22, California voters had enacted a statutory prescription that barred gays and lesbians from marriage. Because Proposition 22 was a statutory enactment by the voters, and not a constitutional amendment enacted by the voters, as was Proposition 8, the California Supreme Court had the power to weigh its constitutionality under the equal protection clause of the California Constitution. It did so at the request of gay and lesbian couples challenging Proposition 22, and the California Supreme Court not only invalidated Proposition 22, but also earlier state laws defining marriage as being only between a man and a woman. As a result of the ruling on Prop 22, California immediately began issuing marriage licenses to gay and lesbian couples, which eventually reached a total of some 18,000 such licenses.All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort." Romer v. Evans, 517 U.S. 620, 633 (1996).
Proposition 8 was promptly introduced by ballot initiative to restore the definition of marriage as being only between a man and a woman. The language of the referendum was very simple (too simple in retrospect to be sustainable, see below): "Only marriage between a man and a woman is valid or recognized in California." As the Ninth Circuit noted: "According to the official voter information guide, Proposition 8 "[c]hanges the California Constitution to eliminate the right of same-sex couples to marry in California."
Beyond eliminating the right of gays and lesbians to obtain the title of marriage from the State of California, Proposition 8 left completely unaffected the long list of rights and benefits that California's legislature had adopted over several years for same sex domestic partners. As the Court noted: "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."
This gave the federal court the ability to decide the constitutionality of Proposition 8 on a very narrow ground. Namely, was there some rational state purpose to be served in denying committed same sex couples a benefit that they had previously enjoyed prior to the passage of Proposition 8, namely the title of marriage for their relationships, while they still otherwise enjoyed all the same legal benefits that opposite sex couples secured to themselves through marriage? Framed in this fashion, the decision was seemingly easy.
The Ninth Circuit relied on Romer v. Evans, a U.S. Supreme Court case that struck down a Colorado voter initiated amendment to the Colorado Constitution that had been passed to overturn a number of ordinances passed by local Colorado municipalities forbidding work-place, housing, education and public accommodations discrimination on the basis of sexual orientation. The Supreme Court noted that the effect of the Colorado voter amendment was to "withdraw from homosexuals, but no others, specific legal protection and forbid reinstatement of these laws and policies." Romer, 517 U.S. at 627. The Supreme Court held that Colorado Amendment 2 violated the Equal Protection Clause because "it is not within our constitutional tradition to enact laws of this sort"- laws that "singl[e] out a certain class of citizens for disfavored legal status," which "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." The Romer court looked for possible public policy rationales that might overcome the inference that the law was motivated by animus and found none. The Romer court thus concluded that Colorado Amendment 2 "classified homosexuals not to further a proper legislative end, but to make them unequal to everyone else." In a footnote, the Ninth Circuit noted this pithy yet inspiring rule from Romer: "Amendment 2 amounted to 'a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.' "
Armed with the rationale from Romer, the Ninth Circuit considered the importance in our society of being "married:"
While the Colorado law in Romer stripped away important protections against discrimination from one class of citizens, homosexuals, and Proposition 8 was held to only strip gays and lesbians from being able to say in truth they were "married," this made the California amendment more suspect to the Ninth Circuit:We need consider only the many ways in which we encounter the word 'marriage' in our daily lives and understand it, consciously or not, to convey a sense of significance. We are regularly given forms to complete that ask us whether we are "single" or "married." Newspapers run announcements of births, deaths, and marriages. We are excited to see someone ask, "Will you marry me," whether on bended knee in a restaurant or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me."
A law that has no practical effect except to strip one group of the right to use a state-authorized and socially meaningful designation is all the more "unprecedented" and "unusual" than a law that imposes broader changes, and raises an even stronger "inference that the disadvantage imposed is born of animosity toward the class of persons affected,"
By resolving the case based on Romer, the Ninth Circuit made clear the limited scope of its holding:
There is one further important similarity between this case and Romer. Neither case requires that the voters have stripped the state's gay and lesbian citizens of any federal constitutional right. ln Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of 'marriage.' There is no necessity in either case that the privilege, benefit, or protection at issue be a constitutional right. We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so. Further, we express no view on those questions.
It is common when considering the constitutionality under the U.S. Constitution of a state statute or constitutional provision, that federal courts decide such cases on as narrow a ground as possible. This is what the Ninth Circuit decided to do. Whether the right of same-sex couples to marry is a fundamental right under the U.S. Constitution will have to await another case.
It will be interesting to see how this decision plays out in the GOP primary struggles in the weeks ahead. One thing is certain, the candidates will contort the decision into an egregious infringement of states' rights by an activist court sitting in that hotbed of liberalism, San Francisco.