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Summary of Prop 8 ruling

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As y'all most likely know by know, the Ninth Circuit Court of Appeals has agreed with the lower court that California's Proposition 8 is unconstitutional.

I read through the decision the other day and took some notes, so I thought I'd post my summary of the ruling here. My summary is, alas, fairly long, but I've tried to make it somewhat skimmable and fairly readable, and it's certainly shorter than reading the whole ninety-page opinion.

But I am not a lawyer, and I may well have gotten some stuff wrong. Also, I'm using some fairly colloquial phrasing here that I don't know that the Court would endorse (everything in quotation marks or block quotes below is a direct quotation from the decision, but everything else is my paraphrasing); also, in some sections I'm reading subtext [usually in square brackets] into what they wrote that I'm not totally certain was intended. So I encourage y'all to read at least the beginning of the ruling yourselves (the first five pages or so are a summary/overview); as with a lot of court decisions, it's got a lot of good stuff in it.

Oh, and I should note that if you don't know what rational basis review is, then some of the following may not make sense to you. Unlike Judge Walker, these judges are looking only at rational basis, not at the stricter levels of scrutiny.

Here's my detailed summary. In the following, “we” and “our” refer to the Court.

pp 1-3: Here's a list of the plaintiffs and defendants.

pp 4-8: We're ruling Prop 8 to be unconstitutional. A couple of key lines:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have been enacted.


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.”

Btw, we're not going to look at any broader issues; we're deciding this case very narrowly, on the basis that a right was taken away.

Oh, and we were asked to decide two other things. Our answers are:

  • Yes, the proponents of Prop 8 do have standing to appeal.
  • No, Judge Walker didn't have to recuse himself for being gay.

So that's the gist of our decisions; details follow.

Sections I-II. (pp 8-20): Here's a summary of the history of civil marriage in California, as it pertains to this case:

I.A. Marriage in CA was originally understood to be between a man and a woman; Prop 22 made that explicit. Domestic partnerships eventually became the equivalent of marriage, in all but name.

I.B. The California Supreme Court struck down Prop 22 as being against the state constitution; CA issued 18,000 marriage licenses to same-sex couples.

I.C. But then Prop 8 (2008) amended the CA constitution to define marriage as being opposite-sex only. The CA Supreme Court upheld Prop 8, but said the 18,000 couples could stay married.

II.A-B. The lawsuit at hand was filed in 2009; the result was that the district court declared Prop 8 unconstitutional; that ruling was appealed to us.

III. (pp 20-31): We asked the CA Supreme Court whether they thought the proponents of Prop 8 had standing; that court said yes. Good enough for us. So now we'll consider the appeal.

IV. (pp 31-33): In the district court trial, Judge Walker made a bunch of findings of fact, which we reviewed. But we didn't have to decide on a standard of review for the potentially controversial ones, because in making our decision we only relied on a subset of his findings.

V. (p 33): Now let's discuss this case on its merits.

V.A. (pp 33-34): In addition to other arguments, plaintiffs argued that taking away an existing right from a minority group violates the Equal Protection Clause of the US Constitution. (As decided in the landmark Romer v Evans case in 1996, which we'll describe later.) That's the narrowest ground on which we could decide this case, so that's what we're looking at in the rest of this decision.

V.B. (pp 34-40): Even though domestic-partnered couples in CA have all the same rights and privileges as married couples, the word “marriage” is important and carries a lot of societal weight:

By emphasizing Proposition 8's limited effect, we do not mean to minimize the harm that this change in the law caused to same-sex couples and their families. To the contrary, we emphasize the extraordinary significance of the official designation of “marriage.” That designation is important because “marriage” is the name that society gives to the relationship that matters most between two adults. A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of “registered domestic partnership” does not.

(p 37)

To illustrate our point: note that the words “marriage” and “marry” are widely used in pop culture, in contexts where the phrase “domestic partner” wouldn't have the same impact. “Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning.” (p 38)

Furthermore, “We do not celebrate when two people merge their bank accounts; we celebrate when a couple marries.” (p 39)

In short, marriage per se is, like, the best thing ever:

[The designation of “marriage”] is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.

(p 39)

And so “Proposition 8 left the incidents [of marriage] but took away the status and the dignity.” (p 40) So the question we're considering is whether the People of California had legitimate reasons for taking away the use of the word “marriage.”

V.B. cont'd (pp 41-42): Proponents argue that Prop 8 was just restoring the old way of doing things, rather than taking away rights.

We reject that argument, because the CA Supreme Court (which we're bound by in this context) stated that Prop 8 eliminated a right. Also, the Voter Information Guide given to voters explicitly said that Prop 8's effect was to eliminate a right. So there!

[Some subtext in a couple of sections: By the way, a lot of our info about Prop 8 comes from the Voter Info Guide. If y'all proponents wanted people to think Prop 8 was about the stuff you're now saying it was about, then you shouldn't have tried to sell it in the Voter Info Guide as something else.]

Also, it doesn't matter how long the right existed; it was still a right:

Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade.

V.C.1. (pp 42-46): Way back in 19 aught and 96, Colorado tried to pass Amendment 2, prohibiting Colorado's local governments from adopting anti-discrimination ordinances about gays. The US Supreme Court (in Romer v Evans) said Amendment 2 violated the Equal Protection Clause of the US Constitution. Pay attention to this, because “Proposition 8 is remarkably similar to Amendment 2.” (p 44) Remember Romer? There's a song about Romer.

Which is to say, we're going to base pretty much our entire decision on Romer.

[And by the way—subtext alert!—the Romer decision was written by US Supreme Court Justice Anthony Kennedy, who's widely considered to be the swing vote should the US Supreme Court consider a same-sex marriage case. So listen up, Justice Kennedy! You yourself wrote all this stuff we're quoting, and it applies directly to the case at hand. So you should agree with us, if the case at hand ever just happens to, oh, I don't know, end up in front of you.]

In particular, just to spare you the suspense of wondering what our argument is going to be: “Amendment 2 amounted to ‘a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit.’ [...] We follow this approach and reach the same conclusion as to Proposition 8.” (p 44, footnote 13) And “As we explain below, Romer compels that we affirm the judgment of the district court [in the Prop 8 case].” (p 45)

And before you ask: Sure, Prop 8 is less sweeping than Amendment 2 was, but it nonetheless causes harm, “and this harm must be justified by some legitimate state interest.” (p 46) In particular:

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.”

(p 46)

V.C.1. cont'd (pp 46-48): The issue to consider is that Prop 8 takes away a right. It doesn't matter whether that right is a fundamental/federal-constitutional right; taking it away is a problem.

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.

(p 47)

We address [only the question of] whether the people of a state may by plebiscite strip a group of a right or benefit, constitutional or otherwise, that they had previously enjoyed on terms of equality with all others in the state.

(p 47, footnote 14)

So given that a right is being taken away from a specific group, what we need to decide here is “whether any legitimate state interest constitutes a rational basis for Proposition 8.”

V.C.2. (pp 48-55): Proponents argued that CA, by allowing same-sex marriages, had gone beyond what the federal Constitution requires in terms of equality; thus, proponents said, going back to the standard in effect elsewhere in the US isn't a problem. But we disagree; “Romer forecloses this argument.” (p 49) We don't care about that stuff; we're only considering the issue of whether changing the law to take away a right from one group (but not others) had a legitimate state reason.

V.D.1-4 (pp 55-70): Proponents offered various possible reasons for enacting Prop 8; we determine that Prop 8 didn't further any of those reasons, and thus that those reasons can't be a rational basis for Prop 8, regardless of “whether or not they are legitimate state interests.” (p 56)

For example, we don't need to decide whether it's better for kids to be raised by two opposite-sex bio parents, because Prop 8 had no effect on legal rights of families; Prop 8 doesn't stop kids from being raised by same-sex parents. In fact, “California law actually prefers a non-biological parent who has a parental relationship with a child to a biological parent who does not.” (p 58) So:

We will not credit a justification for Proposition 8 that is totally inconsistent with the measure's actual effect and with the operation of California's family laws both before and after its enactment.

And re proponents' “irresponsible procreation” argument, the gist of the argument is: [Subtext: Y'all's presentation of that argument was kind of incoherent, so let's take a stab at saying what you probably meant to say:]

[...] marriage reduces the threat of “irresponsible procreation”—that is, unintended pregnancies out of wedlock—by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units. Because same-sex couples are not at risk of “irresponsible procreation” as a matter of biology, Proponents argue, there is simply no need to offer such couples the same incentives.

(p 56)

But we're talking about whether it's okay to withdraw access to marriage, not whether the state is required to extend access to marriage, so regardless of whether that argument is true, it's irrelevant to Prop 8.

(While we're here, we should mention (p 59) that in Johnson v Robison (1974), it was ruled okay to set up a classification in which you extend something to one group but not another, as long as extending it to that one group serves a legitimate purpose, and extending it to other groups doesn't. In other words if we were talking about whether to extend access to marriage, then the “irresponsible procreation” argument might not necessarily be entirely bogus. But because we're talking about taking away a right, the “irresponsible procreation” argument is just not relevant to the case at hand.)

If you really wanted to make an argument about procreation, you:

would have had to argue that opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of “marriage.” We are aware of no basis on which this argument would be even conceivably plausible.

(p 60)

[“Conceivably”! Get it?]


There is no rational reason to think that taking away the designation of “marriage” from same-sex couples would advance the goal of encouraging California's opposite-sex couples to procreate more responsibly. The Johnson argument, to put it mildly, does not help Proponents' cause.

Look, Proponents: we know that you're saying the law is fine as long as there's some conceivable rational basis for it. But “While deferential, the rational-basis standard ‘is not a toothless one’” (p 63); there has to be some basis in reality, and this argument has none.


[To] protest the teaching of [facts about the world] is little different from protesting their very existence; it is like opposing the election of a particular governor on the ground that students would learn about his holding office, or opposing the legitimation of no-fault divorce because a teacher might allude to [its existence] if a course in societal structure were taught to graduating seniors.

(p 69)

V.E.1. (pp 70-74): It's possible that the People's intent in passing Prop 8 was just to revert to the way things were before marriage equality. However:

Laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce [...], but new rights may not be stripped away solely because they are new.

(p 71)

And so:

Absent any legitimate purpose for Proposition 8, we are left with “the inevitable inference that the disadvantage imposed is born of animosity toward,” or, as is more likely with respect to Californians who voted for the Proposition, mere disapproval of, “the class of persons affected.’” [...] And “‘the law cannot, directly or indirectly, give [...] effect’” to private biases.

(p 72)

p 74: It's okay to draw a classification that's “rooted partially in disapproval” as long as there's an independent purpose for the classification, not only disapproval.

V.E.2 (pp 75-76): The campaign to pass Prop 8 relied on perpetuating negative portrayals of and fears about gay people.

V.E.2 cont'd (pp 76-77): Prop 8 didn't have the effects that Proponents say it was intended to have (as described above), but it did reduce gay and lesbian social standing. It had no apparent purpose but to impose the majority's private disapproval.

VI. (pp 77-79): Btw, we agree with Judge Ware that it's okay that Walker was gay.

VII. (pp 79-80): Summary of our decision: We recognize that there are big questions at stake here, but we're not looking at those big questions; instead, we're ruling narrowly that taking away an existing right is unconstitutional.

p 80, footnote 27: PS: The stay remains in effect, so don't y'all go trying to get married just yet. Love, us.

pp 81-89: Here are some lists of lawyers and such.

Whew. I was going to write a summary of the third judge's dissenting opinion in a separate post; but the summary turned out to be short, because he's really only got one thing to say, so I'll just add that here:

I-V. (pp 1-39): Dudes: You're right about a bunch of stuff, but the rational-basis test doesn't have any teeth, so stop trying to add teeth to it. The proponents are right: all we have to do is imagine that someone could have a rational basis, not actually come up with a real rational basis that a real person has. Besides, even if you're right that the bases that proponents describe aren't actually rational, the voters may have thought they had a rational basis when they were voting. So, in short, “I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests,” (p 37), so we can't judge it to be unconstitutional.

(Wrote this entry in bits and pieces over the past few days.)

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