Proposition 8 part I : The Decision

As I find time this week, I'm going to try to look at the recent decision regarding California's Prop 8, and the issue of same-sex marriage generally.

This first post deals with nothing more than the basics of the decision itself.  Part II will look at the stronger arguments against the decision, and part III will look at the issue of same-sex marriage in general, making the argument that Prop 8 and measures like it should be held as Constitutionally impermissible instances of gender discrimination.




I: The Very Basics of the Decision

Okay, so this post isn't quite as late as the others: On February 7, the U.S. Court of Appeals for the Ninth Circuit decided that California's Proposition 8 was unconstitutional, as violative of the Fourteenth Amendment and the Equal Protection clause.  Prop 8 amended the California constitution, adding the following language: "Only marriage between a man and a woman is valid or recognized in California."

What the Court's opinion did not do: it did not decide the Constitutionality of denying the right to marry to same sex couples. Neither did it decide that there is a Constitutional right to marry enjoyed by same sex couples.  Instead, it viewed the Constitutionality of Prop. 8 in light of two circumstances specific to California: 1) California has a domestic partnership statute which purports to give same-sex couples the same "rights, protections and benefits" as "are granted to and imposed upon spouses," and 2) Prior to the passage of Prop. 8 same-sex couples had the right to marry, as statutes denying that right had been found by the California Supreme Court to be violative of California's constitution. In light of these circumstances, the appellate court decided the case on very narrow grounds.

Under the court's rationale, Prop 8 did not target a suspect class, and did not burden a fundamental right -- as all of the incidents and protections of marriage were preserved with California's Domestic Partnership and related statutes, with only the designation of "marriage" and the societal dignity it implies being targeted.  For Prop 8 to stand, then, the court had merely to find that some legitimate state interest formed a rational basis for Prop 8 and its rescinding of  access to the designation of marriage by same-sex couples.  The basic thrust of the strongest purported state interest behind Prop 8: 1) the state has an interest in responsible procreation and child rearing, 2) children are better off raised in the home of two biological parents, and therefore 3) the state has an interest in "funneling" child-rearing into families that can be led by two biological parents.

Largely because Prop 8 left the status of registered domestic partners the same, and left untouched the applicable parentage statutes, the court found no such interest served by withdrawing the availability of the designation of "marriage" -- and the societal dignity and mark of approval that comes with it -- from same sex couples.  Even if the court assumed that children are better off raised in the home of two biological parents, rescinding the ability for same-sex couples to marry had no relationship to the purported interest, then, because Prop 8 had no effect on same sex couples' ability to become parents or raise children and therefore no "funneling" effect.

Prop 8 fell, then, because the court found that it served no legitimate purpose, and imposed a disadvantage on a class -- gay men and women --explicable only as an expression of animus towards that class.