In a 2-1 decision a three judge panel from the United States Court of Appeal for the Ninth Circuit has ruled that California’s Proposition 8 ban on same sex marriage violates the 14th Amendment and is therefore unconstitutional. This is a decision that is going to create quite a buzz among legal scholars, on top of the hot potato political debate that rages on over same sex marriage. The opinion’s language is very conservative in that it focuses the dispute on California, rather than trying to expand it nationally. The court focuses on the fact that by statue in California same sex couples already have all of the same rights and privileges as opposite sex couples, except that they cannot get a license to get “married.”
This tight focus could possibly allow the U.S. Supreme Court to punt on having to decide if a same sex marriage ban would be unconstitutional across the country. If the Supreme Court denies review of today’s ruling, Prop 8 would be dead, and same sex marriage would become legal in California, but not automatically spread beyond California. That just seems too easy given the political debate on the same-sex marriage issue, but it is possible.
Here is the kicker language in my opinion. The court writes:
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.
In support the court asserts heavy reliance on a 1996 Supreme Court case called Romers v. Evans. In that case the Supreme Court threw out a Colorado constitutional amendment that banned regulations prohibiting discrimination based on sexual identity. The 9th Circuit opinion today hits again, and again, at the Romers precedent.
This little paradox is gonna tie a knot in the robe of the Roberts-Scalia-Thomas-Alito bloc at the Supreme Court, and should provide for some entertaining court watching. Then again maybe not. I suppose the 4 COIs (conservative original intentors) could write that there were no homosexuals at the time the Constitution was drafted, and therefore the document does not contemplate the protection of such a class of people? Victory Prop 8. However, that seems a bit boring to me, and without any legal reasoning. I thing the Supreme Court is supposed to be more complicated than that?
There is another interesting twist to the case. 9th Circuit Associate Justice N. Randy Smith writes a dissent wherein he does believe that Prop 8 is rationally related to a legitimate governmental interest. This dissent could be an analysis that the 4 COIs run with. The sub-plot is that Justice Smith, who earned his undergraduate and law degrees from Brigham Young University, may be a Mormon. And the Mormon Church was a major financial supporter of the Prop 8 campaign. Just as conservative pundits criticized District Court Judge Vaughn Walker for being gay, I am sure the liberal pundits are going to attack Justice Smith’s Mormonism.
I am not a constitutional law professor, and can only speak as an amateur Supreme Court observer, but this does seem to be pretty intriguing stuff! I am looking forward to seeing how it gets analyzed by the experts and how it plays out with the Supremes.