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Ninth Circuit Affirms District Court, Strikes Down Proposition 8

by Professor Will Huhn on February 8, 2012

in Constitutional Law,Equal Protection,Wilson Huhn

On Tuesday the United States Court of Appeals for the Ninth Circuit handed down its decision in the case of Perry v. Brown, the Prop 8 case.  The Court of Appeals struck down Proposition 8, but it did so on narrow grounds.  It is unlikely that the United States Supreme Court will agree to review the decision of the Court of Appeals.

On Tuesday the Ninth Circuit upheld the decision by District Court Judge Vaughn Walker declaring California Proposition 8 to be unconstitutional.  The Court of Appeals did not hold that same-sex couples have a constitutional right to marry.  Instead, the court ruled that it was unconstitutional for the people of the State of California to take away a previously granted right purely for symbolic reasons.

There are a few things that make this case unique among the same-sex marriage cases.  First, Proposition 8 does not distinguish between same-sex unions and opposite-sex unions in any practical or legal sense.  Under Proposition 8 same-sex couples are allowed to enter into domestic partnerships and opposite-sex couples may enter into marriage, and domestic partnerships and marriages confer precisely the same legal rights.  Under Proposition 8 there is no difference between domestic partnerships and marriage  except in the term used to describe the legal relationship. 

Another remarkable thing about this case was the trial that occurred in the District Court.  In the trial court there were a parade of witnesses who testified about the status of gays and lesbians in our society, the nature of their relationships, and their capacity to raise children.  In general, the experts who testified on behalf of the same-sex couples were highly qualified social scientists who relied extensively upon peer-reviewed studies to support their conclusions that gay and lesbian couples have as stable relationships and are as good at parenting as opposite-sex couples.  The experts who were offered in support of Proposition 8, on the other hand, were self-appointed "experts" who relied upon anecdotal evidence and outmoded stereotypes to argue that the right to marry should not be extended to gay and lesbian couples.  The stark disparity between the two sides was evident to anyone who looked at the evidence.  The plaintiffs challenging Proposition 8 had science and reality on their side; those supporting Proposition 8 had nothing but tradition and prejudice.  Judge Walker entered detailed findings and conclusions based upon this evidence.  The Prop 8 trial was and will remain a watershed in the history of the movement seeking equal rights for gays and lesbians.

However, the Court of Appeals ignored all of this evidence.  Instead, the Court found that only one evidentiary fact was relevant – that the whole case turned upon a single finding.  That fact, admitted by the supporters of Proposition 8, is that there is a symbolic difference between domestic partnership and marriage.  It was this fact – a fatal concession - that drove the majority of the Ninth Circuit panel to the conclusion that Proposition 8 was unconstitutional. 

The third unique aspect of this case is that the plaintiffs did not have to persuade the courts that they had a constitutional right to marry (although Judge Walker ruled that they did have such a right).  Instead, the plaintiffs only had to persuade the court that it was unconstitutional for the State of California to take the right to marriage away and substitute the same legal rights under the name "domestic partnership" for purely symbolic reasons.

Accordingly, the Court of Appeals for the Ninth Circuit issued a ruling confined to the facts of this case.  The Court held that it violated the rights of same-sex couples for the State of California to take away their right to call their legally-recognized relationship "marriage" instead of "domestic partnership." 

In dissent, Judge Smith half-heartedly offered the following rationale for upholding Proposition 8:

Here, the people of California might have believed that withdrawing from same-sex couples the right to access the designation of marriage would, arguably, further the interests in promoting responsible procreation and optimal parenting.  "The assumptions underlying these rationales may be erroneous, but the very fact they are 'arguable' is sufficient, on rational basis review …."

Because Proposition 8 grants same-sex couples in domestic partnerships the same rights as parents that opposite-sex couples have in marriage, it is difficult to imagine how Proposition 8 promotes responsible procreation and optimal parenting.  Furthermore, the terms used by the dissenting judge to describe this argument - "might," "arguably," and "may be erroneous" do not betoken confidence.

The decision of the Ninth Circuit is quite narrow.  In effect, the Court of Appeals found that Proposition 8 was not intended to alter any legal rights or responsibilities, but rather was intended to "send a message" about the value or significance of same-sex unions.  The Equal Protection Clause of the Constitution, ruled the Court of Appeals, does not permit the states to express their disapproval of entire segments of society in this manner. 

I do not believe that the Supreme Court will choose to review this case.  The precise facts are not likely to occur elsewhere.   Other, more substantive same-sex marriage cases are wending their way through the federal courts.  The Supreme Court will wisely wait until a Court of Appeals has issued a decision in one of those cases.

I do not mean to diminish the political and social significance of this decision.  When California's 33 million residents are added to those of New York and five other states, one-fifth of all Americans will live in jurisdictions where same-sex marriage is recognized.  A handful of other states, including Washington, Maryland, and New Jersey, are poised to join that group.  Gay and lesbian married couples will become more commonplace and more accepted.  In the not-too-distant future, people will wonder what all the fuss was about.