Proposition 8

As noted in the QH update on Feb. 7, the 9th Circuit Court of Appeals upheld the lower court ruling that struck down California's Proposition 8 - which was an amendment to the California State Constitution defining marriage as only being between one man and one woman - as unconstitutional under the US Constitution.

For those in California who tracked the case from 2008 to present, this decision by the 9th Circuit was not a surprise.  The 9th Circuit is one of the most liberal Circuit courts in the United States - and one of the most oft overturned by the Supreme Court of the United States.

A brief history is needed to set the background for the 9th Circuit decision.

In 2008, the California Supreme Court determined that the equal protection clause within the California State Constitution afforded the rights for homosexual couples to marry - and invalidated a state law on the books that prohibited gay marriage.  The jurists believed that to deny the ability to marry to homosexual couples was the denial of a fundamental right and in itself discriminatory towards homosexual couples.

This case came after Gavin Newsom, then the Mayor of San Francisco, decided to ignore an existing state law that prohibited gay marriages and the issuance of marriage licenses to same sex couples in San Francisco.

Opponents of gay marriage saw this as judicial activism, claiming that the CA Supreme Court created a new set of rights not expressively given within the State Constitution.  Others also argued that one's sexual preference was not a specific protected class as one's race, gender, or creed is.  Since one of the rationales used by the Supreme Court in their ruling was that the State Constitution did not specifically define marriage, these opponents got Proposition 8 onto the fall 2008 ballot - to amend the State Constitution to specifically read that marriage is only between one man and one woman.

It should be noted, that at this point of time, same sex couples in California had all of the rights and obligations of heterosexual marriage via civil unions...all of the rights except the state sanctioned use of the term 'marriage' as in a marriage license.

The citizens of California passed Proposition 8 by 52.24% in favor to 47.76% opposed.  The State Constitution was amended....and the proponents for gay marriage sued to have Proposition 8 overturned even though it was passed by a popular majority.  This led to the first trial and then to the appeal to the 9th Circuit.

As discussed yesterday, the ruling by the three judge panel of the 9th Circuit would address three major questions.

The first, Should Judge Walker, who heard the original case, have recused himself from the case as he was a gay man, involved in a long term relationship, and therefore had a conflict of interest in the deciding of a case regarding the decision on permitting gay marriage?

The 9th Circuit Court ruled unanimously, 3-0, that he should not have recused himself.  This gets into a grey area, but I think was a good decision.  What if the case was about a Catholic charity, with a Catholic judge?  Would we have asked for the recusal of that judge because of his religion?  We have to expect a judge to be more prudent and professional.  While Judge Walker, in my opinion, pressed the levels of professionalism regarding his handling of the trial, and in particular, the video of the trial, there are processes in place to address that conduct...and Walker is now retired.

The second question was if the defenders of Proposition 8 had the proper legal standing to defend the Proposition.  This was a state ballot / amendment to the state Constitution.  In normal circumstances, the process would be defended by the government of California - the Governor and Attorney General.  However in this case, these Democrat officials declined to defend Proposition 8 as they advocate gay marriage.  The 9th Circuit jurists unanimously determined that the groups who pushed for Prop 8 to be a ballot measure had standing to defend the proposition.

The third question was the real one for this case - was the Proposition constitutional?




In this, the 9th Circuit did not rule unanimously.  They also took a very narrow approach towards their ruling to uphold the lower court's ruling invalidating Proposition 8 on the grounds of constitutionality.  This was the biggest surprise of the decision - and one that appears to me and others to be specifically constructed for three particular reasons.

Rather than ruling, like the California Supreme Court, that homosexuals enjoyed a broad right to marry, the 9th Circuit held that since California had granted, even though briefly, in 2008 via the State Supreme Court decision, the right to gay marriage - and some 18,000 same-sex couples in California were wed prior to the passage of Proposition 8, Prop 8 was unconstitutional because it took away a right to same-sex marriage for only one minority group (homosexuals) when everyone had the right before.

Simply, because 18,000 same-sex couples were able to wed prior to Prop 8, the US Constitution doesn't permit the voters to take that right away after the fact.

The 9th Circuit specifically did not move to address the question towards the CA Supreme Court's creation of the right of marriage for same-sex couples - or the definition of the term marriage - or if the denial of same-sex couples to the state sponsored use of the term 'marriage' as opposed to civil unions was discriminatory.

I referenced earlier that this was done specifically for three particular reasons....

SCOTUS schedule.

The second reason for the narrowness of the decision is to limit the scope of any review of the case by the SCOTUS.  Again this is an effort to redirect the question from whether or not homosexual marriage is constitutional, or a right, or that the traditional definition of marriage being between one man and one woman is constitutional, to a very narrow decision on isn't it wrong to give a group a 'right' and then take it away - particularly on something as 'fickle' as a popular vote?  One can hear the argument now, would we permit slavery or 'Jim Crow' today if the popular vote authorized it?

The final reason is that the decision is written specifically to appeal towards one member of the US Supreme Court.  Associate Justice Anthony Kennedy is widely seen as the swing / deciding vote for the panel on many issues, including this one.  Narrowing the decision and building it in the manner that they did, they are directly appealing to Justice Kennedy to look at this question in one way only - and not in a larger scope where he may be less receptive.

We don't know specifically what the next step will be.  Will the entire 9th Circuit first hear this 'en banc' to either agree or overturn this decision?  Or will that step be skipped and the case taken to the US Supreme Court?  Will the SCOTUS hear the case in the 2012-13 session?

The rationale of the majority in this decision has some real challenges.  The State Supreme Court noted that the definition of marriage wasn't specifically defined in the State Constitution, and therefore saw in that Constitution the right for same-sex marriage.  The people, via a legal process, and objecting to the decision, voted to amend the Constitution to clarify the missing point.  However, both the lower court and the 9th Circuit not only seem to claim that the judiciary in California has a supremacy over the will of the people, but that regardless how a 'right' was given - even if wrongly given - once given cannot be rescinded.

The proper process for those who are in favor of same-sex marriage to have followed would be to put together their own ballot initiative to repeal Prop 8 - to undo that definition of marriage in the State Constitution.  Once that passes by a majority vote, then this would be over.  Those who oppose it would not like it, but the majority of them would accept the will of the people - and do so far more willingly than accepting judicial activism.

Advocates of same-sex marriage say that denying them the use of the term 'marriage' in terms of the state issuance of marriage licenses is discriminatory because they see being homosexual as being a 'protected class'.  We do have protected classes within our society.  We protect those from discrimination based on how they look - their race.  We protect those from discrimination based on what gender they are - whether they are male or female.  We also protect those from discrimination based on what religion they practice.  I this country it's immaterial if one is Catholic, Jewish, Protestant, Muslim, Hindu, or agnostic.

These aren't the only differences between people.  There are the differences between us based on our sexual preferences.  There are differences between us based on our hair color, or abundance / lack of hair.  There are differences between us based on our size - large / small, thin or obese.  There are differences between us based on our eye color.  At what point do we limit just what items divide and differentiate us?  Do all of these differences also qualify for status as 'protected class'?  Which one is the 'protected class' or the 'discriminated class'?  How far do we take these?

Associate Justice Ruth Bader Ginsburg told an audience in Egypt to model their new Constitution from one other than the US Constitution because we are limited in what rights are defined - we don't include a right for food, housing, education, or healthcare  (or gay marriage) - those are either left to the state or self-provided by the individual as opposed to by the state.  This is one of the things that makes the US Constitution unique.  A right the government provides is something that can be taken away - either directly or from someone else.

In California, via civil unions - a legal union between same-sex couples - there are no rights or obligations that do not exist in the legal union between different-sex couples which uses the historical term 'marriage'.  One is called a civil union, the other marriage in the eyes of the state.  Preventing the use of the term marriage is not discriminatory.   It's a term with multiple millenniums of the same definition - joining one man and one woman in a union.  Is the denial of the term or the ability to redefine the term discriminatory?  How so?  What changes if the term now has a new meaning?

Does the fact that the state terms same-sex unions civil unions and different sex unions marriage create discrimination?  If a same-sex couple in a civil union decides to call themselves 'married' or in a 'marriage', does this result in their arrest and imprisonment for the misuse of the term?  No.  What are they really being denied? 

They are being denied the ability to change the definition of a word / act that has existed for millennium.  They are also being denied an ability to make their sexual preference a protected class above and beyond where it is today.  They are also being denied the ability to use the courts to mandate how other people think - and for the militant of the group - to force the open acceptance of their sexual preference by those who believe it is a private matter than does not belong thrown into someones face.

I'm still waiting for a cogent answer as to why 'marriage' as a term has to be redefined.  I'm still waiting for a cogent answer as to why one's sexual preference is a basis of identification on the same basis as race, gender, or religion is..and why another one is needed.