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Just what happened in February when the 9th Circuit Court in California declared Proposition 8 unconstitutional? 


Do same sex couples have a constitutional right to marry, just as different sex couples do? Nope. So what did happen?

In 2008, the California Supreme Court held that same sex partners must be guaranteed all of the same marriage rights as different sex couples. Consequently, more than 16,000 same sex couples married. 

Less than six months after this declaration that same sex marriage was legal in California, citizens who disfavored same sex marriage conceived of, drafted and placed on ballot Proposition 8, which declared that “marriage” was a word reserved for different sex couples.  After intense advocacy on both sides of the issue, Proposition 8 was passed.

Prop 8 did not rollback the rights guaranteed by the California Supreme Court in 2008.  The only change wrought by the initiative was that same sex partners couldn’t call their arrangement “marriage”. Proponents of Prop 8 stated that the reason for this distinction was that marriage when it was accomplished by different sex couples served the legitimate government interests of stabilizing nuclear families, of raising children.  They stated that schools would teach that same sex marriage is legitimate.

The court in Prop 8 declared these rationalizations made no sense and were likely dishonest.  Prop 8 didn’t make any changes to shore up nuclear families, nor to help raise children.  The claim about incremental change made no sense in light of the fact that, prior to Prop 8, marriage had evolved in California so that the institution existed with full rights for same sex couples.  Schools, the court says, teach what 'is' and Prop 8 did nothing to change that.  The true basis for Prop 8, the court found, was animus against LGBT’s.  Proposition 8 was motivated not by a legitimate government concern to achieve a legitimate government objective, but by a desire of a majority to disadvantage a minority group.

The court held that legislating on that basis is so wrong that it is unconstitutional, not because doing so violates the Equal Protection Clause of the U.S. Constitution.   Nor did the court rule that marriage is a fundamental right for same sex couples, as it is for different sex couples.  These are the holdings that we eventually want the U.S. Supreme Court to make, that we have a constitutional right to marriage.

Instead, the court noted that the  right to marry existed in California before the passage of Prop 8; and because Prop 8 took away this right that already existed, and because it took it away based upon an illegitimate basis, Proposition 8 was declared unconstitutional.  Disapproval of same sex couples was an illegitimate motivation to use law to take away rights they already had. 

The Big Declaration that we long for, the full-fledged national recognition of our constitutional right to marry, will have to wait.

But this might be a good thing.  The Supreme Court is reluctant to declare new rights for minority groups.  Knowing that the Supreme Court prefers incremental movement toward controversial rulings, it was savvy for the court to frame this case as one affecting only marriage in California.

So, is the Prop 8 decision a big deal?  Yes.  It’s the first time that a federal court of appeals has ruled in our favor on same sex marriage.  And the decision will probably mean that the most populous state in the United States will again be issuing marriage licenses to same sex couples in the near future.

This court said that the word "marriage" carries extraordinary significance, "for it is the name that society gives to the relationship that matters most between two adults.  It is the designation of 'marriage' itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring, of something profoundly important."

It's clear the 9th Circuit gets it.  We're not so sure, yet, about a majority of the Supremes.


robert_bush_savannah170Robert is a local writer, activist, and attorney.  He has managed the HIV/AIDS Legal Project of the Georgia Legal Services Program for several years.