Prop. 8 Ruled Unconstitutional

Today, a three member panel of the 9th Circuit Court of Appeals ruled, by a 2-1 margin, that Prop. 8 is unconstitutional.

The Court said that Prop. 8 “served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.”

This seems to be following the logic in Lawrence v. Texas which overturned laws restricting gay sex since such laws where not aimed at specific activities, but gays themselves. The 9th Circuit panel seems to be using the 14th Amendment in a similar way. Prop. 8 violates the equal protection of US citizens who are gay.

This ruling paves the way for a showdown before the Supreme Court. While the Supreme Court leans conservative, I think that the active presence of Ted Olson in fighting against Prop. 8 shows that conservative legal elites are not unified on the matter of same-sex marriage.

It will be interesting to see what the Supreme Court does since their ruling may impact measures similar to Prop. 8 (with many being much more restrictive) that exist in many states.

6 Replies to “Prop. 8 Ruled Unconstitutional”

  1. This seems to be following the logic in Lawrence v. Texas

    No, it’s Romer v. Evans and its probably aimed at Mr. Justice Kennedy.

    The USSC will probably grant cert and Reinhardt’s reasoning on the extremely deferential rational basis test will probably be struck down…there’s a reason why the Ninth Circuit is also known as the Ninth Circus. The USSC reverses it far more than any other circuit court and often in very harsh terms.

    I suppose the hope is that this will keep the situation alive long enough for societal attitudes to change or USSC membership to shift decisively. Or something like that.


    1. Romer is likely the precedent for Lawrence as well. Either way, I see a similar logic. I do not see this coming up until next year…though what do I know?

  2. Did anyone explore this possibility before the church rushed headlong into the Prop 8 fight? Whether it did or did not, I continue to wish the church had taken a much lower profile than it did.

  3. From the Church’s response: “The Church of Jesus Christ of Latter-day Saints regrets today’s decision. California voters have twice determined in a general election that marriage should be recognized as only between a man and a woman. We have always had that view. . . .”

    Say what!? Apparently now we’re just pretending that whole polygamy thing didn’t happen…

  4. Jason: Polygamy as practiced by the church always included at least A man and A woman. That it also included ANOTHER (… and another and another) woman doesn’t have any bearing on same-sex marriage. 😀

  5. I’m not sure this was terribly surprising all things considered. It’ll be interesting to see how the supreme court takes up the question. Of course I also think that the writing is on the wall in terms of national policy. It’s only a question of when rather than if gay marriage becomes normative. And I’d be shocked if it doesn’t become the norm in most states within 20 years. The views of the young are simply too different from the views of the old. There’s a huge generational gap on these issues.

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