How will the overturning of Prop 8 affect future law?

February 10, 2012

Prop 8Earlier this week, the U.S. Court of Appeals for the Ninth Circuit ruled in Perry v. Brown, overturning as unconstitutional California’s 2008 ballot initiative Proposition 8.

Prop 8 amended the California State Constitution by adding a section that simply read that “only marriage between a man and a woman is valid or recognized in California.”

Although this is certainly a victory for the advancement of same-sex marriage rights, this court victory is much closer to Romer v. Evans than to Lawrence v. Texas, which probably comes as a disappointment to gay rights advocates.


Because of the massive difference in the breadth of the decisions’ impacts.

Lawrence, decided in 2003, invalidated all anti-sodomy laws nationwide.

If the Ninth Circuit’s ruling had been as broad, defense of marriage acts (DOMAs) in states across the country would be vulnerable to invalidation.

That wasn’t how the Ninth Circuit framed its reasoning, though.

Rather than striking down Prop 8 with a finding that homosexual couples have the same fundamental right to marriage under the U.S. Constitution that heterosexual couples enjoy, the appeals court went the same way as the Supreme Court did in Romer.

That 1996 Supreme Court decision invalidated an amendment to the Colorado State Constitution that prohibited any government entity from legally protecting homosexuals from discrimination (check out this post for more on it).

The amendment – Amendment 2 – arose as a voter initiated response to several cities passing ordinances banning such discrimination.

The Supreme Court found that the sole purpose of the amendment was to discriminate against homosexuals, which the Court held was not a legitimate reason (which the Constitution requires for the passage of a law that treats different classes of people differently).

Those facts closely resemble Perry’s: in response to a May 2008 California Supreme Court decision that invalidated state restrictions on same-sex marriage, the voter initiative Proposition 8 surfaced.

Given the similar circumstances, it should come as no surprise that the Ninth Circuit relied heavily on Romer.

But was Prop 8 truly intended for no other purpose than to discriminate against homosexuals?

The ballot title of Prop 8 – “Eliminates Rights of Same-Sex Couples to Marry” – certainly supports the notion.

The Ninth Circuit, though, looked primarily to the fact that homosexuals had previously enjoyed the right to marry in the state of California (albeit briefly, from May through November of 2008), and that Prop 8 was specifically intended to strip them of that right.

Thus, Prop 8 was invalidated following the same reasoning as Romer, and, just as Romer only voided Colorado’s law, Perry only voided California’s law.

Nonetheless, the opinion’s narrower scope shouldn’t necessarily be viewed as a setback by same-sex marriage proponents.

In fact, it may very well have saved Perry from a Supreme Court overruling later on.

Since it so closely echoes Romer, the Supreme Court would affirm the Ninth Circuit, should the Court choose to hear the appeal.

However, such an affirmation would establish precedent that may pave the way for a broader ruling that strikes down all state DOMA laws, much like how Romer paved the way for Lawrence.

Therefore, the Court’s conservatives are likely to not even want to touch the case at all.

The Court’s liberals likewise would prefer not to hear the case either, since doing so may raise the possibility, however remote, that the Ninth Circuit would be overruled.

So if the Supreme Court doesn’t hear the case, what impact will it have on national same-sex marriage jurisprudence?

Unless the decision is reheard en banc and overruled, it will serve as important precedent.

For what?

The ruling found that banning same-sex marriage did not support any of the rationales that opponents of same-sex marriage typically provide to support their position  (“responsible procreation and childrearing,” “religious freedom,” “tradition,” etc).

Although the court here was only talking about taking away rights that were once possessed, it doesn’t take much imagination to extend the same logic to circumstances wherein the right was never possessed.

How exactly the effects of Perry v. Brown play out remains to be seen.

Regardless, the decision is a monumental one for same-sex couples in California.