法律英语：122 Is Proposition 8 Constitutional?

by Adam Freedman

Today’s topic:  Proposition 8, gay marriage, and the Constitution.

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

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Prop 1 8 Suffers a Defeat in the Court

On August 3, 2010, a federal judge struck down California’s Proposition 8, which prohibited the Golden State from issuing marriage licenses 2 to same-sex couples.  I’ll explain what the judge decided 3--and why--and what’s next in the legal battle over gay marriage.

Round Two for Gay Marriage in California

Prop 8 was passed by California’s voters in November 2008.  It amended 4 the California Constitution with the following sentence: “Only marriage between a man and a woman is valid 5 or recognized in California.” 

Prop 8 was actually “round two” in California’s battle over gay marriage.  In November 2000, the voters of California adopted a similar initiative known as Proposition 22, or the California Defense 6 of Marriage Act.   However, as I discuss in an earlier article, the California Supreme 7 Court struck down Prop 22 on the grounds that it violated the California Constitution.

What Is the Perry Lawsuit 8?

Prop 8 was intended to address that earlier decision striking down Prop 22 by amending 9 the California Constitution itself.  A few months after the passage of Prop 8, a number of gay couples filed a lawsuit against Governor Schwarzenneger and various other state officials challenging the law.  The lawsuit is known as Perry v. Schwarzenneger.

What Did the Prop 8 Ruling Say?

On August 3, 2010, Federal District Judge Vaughn Walker issued his decision against Prop 8. The decision is 136 pages long, so I won’t be able to describe every detail.   But the quick and dirty summary is that California’s decision to restrict marriage to opposite-sex couples violates the Fourteenth Amendment 10 of the US Constitution--and the US Constitution trumps 11 the California constitution.

What Does the Fourteenth Amendment Say?

The Fourteenth Amendment is one of three amendments 12 adopted after the Civil War to ensure that America’s newly-freed slaves would enjoy the full rights of citizenship 13.  Over time, courts have extended the reach of the Fourteenth Amendment beyond racial equality. Judge Walker’s ruling, however, marks the first time a federal court has held that the Fourteenth Amendment provides gay couples with a right to get married. Here’s how the judge got there.

The Fourteenth Amendment and Gay Rights

The Fourteenth Amendment says that no state shall:

deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction 14 the equal protection of the laws.

The first part of that sentence is known as the “Due Process Clause” and the second part is the “Equal Protection Clause.”  Both clauses played a role in this case.

Let’s first talk about the Due Process Clause. When government action places a burden on the exercise of a “fundamental right”--such as the right to privacy--then it can be challenged under the Due Process Clause.  Earlier precedents 15 have established that the right to marry is a “fundamental right.”  But the question is whether that fundamental right is limited to opposite-sex couples?

Is Marriage a Fundamental Right?

In what is likely to be one of the more controversial aspects of his decision, Judge Walker held that “gender no longer forms an essential part of marriage.” In other words, the “fundamental right” to marry applies to any two consenting adults--gay or straight.   The judge then concluded that California has no “legitimate 16 interest” in denying marriage to gay couples and, therefore, Prop 8 violates the Due Process Clause.

What Is the Equal Protection Clause?

As for the Equal Protection Clause, on its face, it requires that all persons be treated equally under the law.  In reality, however, many, many laws require that different categories of people receive different treatment. 

Think about it: various laws say things like people under 16 can’t drive a car; or people under 21 can’t drink alcohol, or that women can’t serve in combat units in the military.  Don’t those violate “equal protection?”  The key is that courts will generally uphold such laws as long as they have a rational basis.  Some laws, however, are held to a higher standard--known as “strict scrutiny”--if they are found to target a “suspect class,” that is, a group that has suffered a history of unequal treatment.

The Equal Protection Clause and Gay Marriage

Judge Walker held that Prop 8 discriminates 17 against gay individuals on the basis of both sex and sexual orientation--by denying them the right to choose a marital 18 partner.  He then stated that Prop 8 violates the Equal Protection Clause because it is not rationally related to any legitimate government end.  The judge also said that laws such as Prop 8 should be treated to “strict scrutiny” because gays constitute a “suspect class.”  The court’s language is potentially significant because no federal court has held that gays and lesbians constitute a “suspect class” under the Equal Protection Clause.  However, because the court’s decision did not actually depend on using “strict scrutiny,” that language is not an official part of the court’s holding.

One interesting aspect of this case is that California already allows gay couples to enter into so-called domestic partnerships 19, which provide essentially 20 the same rights and obligations as traditional marriage.  However, the Court held that domestic partnerships don’t solve the Constitutional problems because domestic partnerships “do not provide the same social meaning as marriage.”   

What’s Next for Gay Marriage?

Judge Walker’s ruling is not the end of the story--the issue of gay marriage may well be coming to an appellate court near you.  The Prop 8 lawsuit is already being appealed to the Ninth Circuit Court of Appeals and is virtually certain to end up in the Supreme Court. 

Judge Walker’s ruling does not even mean that gay marriage will immediately resume in California--the Ninth Circuit has decided that Prop 8 will remain in effect until the current appeal is resolved.  Nor does it mean that other states must recognize California same-sex marriages.  The federal Defense of Marriage Act prohibits that.  Having said that, the Defense of Marriage Act itself is being challenged in--you guessed it--a lawsuit; this one originated in Massachusetts.

The coming months and years will be a fascinating time for the legal definition of “marriage.”  As for me, I kind of like the Chinese man who got around the whole problem a few years ago by marrying himself.  When asked why he did it, he simply said “this marriage makes me whole again.”

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