By Mary O’Rourke, Juris Blogger
On February 7, 2012, the Ninth Circuit filed their opinion in the matter of Perry v. Brown, which considered the constitutionality of California Proposition 8, which limited California’s recognition of marriage to marriages between only men and women. Proposition 8 was the result of an initiative to amend the state constitution proposed by five California residents who successfully obtained enough voter signatures and petitions to have the initiative placed on the November 4, 2008 ballot. Following a contentious campaign, 52.3% of California voters approved Proposition 8, and accordingly, the following day it became effective as a part of the California State Constitution.
Two same-sex couples filed an action in federal court arguing that Proposition 8 violated the Fourteenth Amendment to the federal constitution. After a twelve-day bench trial, The United States District Court for the Northern District of California held that Proposition 8 was unconstitutional under the Due Process Clause of the Fourteenth Amendment because no compelling state interest justified denying same-sex couples the fundamental right to marry. Further, the Court found that Proposition 8’s effect of depriving same-sex couples the right to marry was a violation of the Equal Protection Clause because there was no rational basis for limiting the right to marry to opposite-sex couples.
Judge Reinhardt, writing on behalf of the Ninth Circuit, began the opinion discussing the fact that in California, marriage had historically been limited to relationships between men and women. Following the enactment of the Defense of Marriage Act of 1996 by Congress, the California legislature adopted Proposition 22, a statutory initiative that indicated “[o]nly marriage between a man and woman is valid or recognized in California.” On its face, this statute appeared to limit recognized relations between same-sex couples. However, California contemporaneously statutorily created a legally recognized relationship between same-sex couples known as the “domestic partnership.” A “domestic partnership” is defined as a legally recognized relationship reserved for “two adults who have chosen to share one another’s lives in an intimate and committed relationship of equal caring.” Cal. Stats. 1999, ch.588, § 2. By 2008, California’s statutory provisions provided those engaged in a “domestic partnership” enjoyed the same rights, protections and benefits as those granted to married individuals. 2003 Domestic Partnership Act at Cal. Stats. 2003, ch. 421 § 4.
In 2004, the constitutionality of various California statutes limiting marriage to opposite-sex individuals, including that of Proposition 22, was challenged in the California Supreme Court. In Re Marriage Cases, 183 P.3d 384 (2008). The Court held that the fundamental right to marry, provided by the due process clause of California’s State Constitution, could not be denied to same-sex couples, rendering statutes that limited the right to marry to opposite-sex couples unconstitutional. Similarly, the Court held that the disparate treatment between same-sex couples and opposite-sex couples regarding the right to enter a matrimonial relationship violated the Equal Protection Clause of Article I, Section 7, of the California Constitution. The Court therefore invalidated Proposition 22 and ordered that the union of marriage be made available to both same-sex and opposite-sex couples.
The Proponents of Proposition 8 appealed immediately. Leaving the Ninth Circuit to determine whether Proposition 8 violated the Equal Protection Clause of the United States Constitution because it withdrew from one class of persons, homosexuals, the fundamental right of marriage that the California Supreme Court held was granted by the due process clause of the California state constitution, while leaving the right to marry available to all persons who do not identify as homosexuals.
The Court began their analysis by examining the effect of Proposition 8. Before and after its enactment, same-sex couples were granted the same exact rights under California law as opposite-sex couples, except they were not granted the right to be ‘married’ under state law. For example, same-sex couples in California can file state taxes jointly, raise children together –with full parental rights, and participate in a partner’s group health insurance policy on the same terms as a spouse. Thus, the enactment of Proposition 8 did not take away the ‘incidental rights to marriage’ but forbid same-sex partners’ unions from being recognized as a “marriage” by the state. The Court made clear that the official status of ‘marriage’ is more than the rights incidental to marriage that same-sex couples are provided under California law. The right to enter a marriage and have that marriage recognized by the state is premised upon the notion that both the state and society attribute dignity and respect to the relationship two individuals have decided to enter. The effect of Proposition 8 was to officially deny same-sex relationships the same full recognition that is granted to opposite-sex relationships under the California Constitution.
In determining whether Proposition 8 violated the Equal Protection Clause of the U.S. Constitution, the Court looked to the Supreme Court of the United States decision in Evans v. Romer. 517 U.S. 620 (1996). In Romer, the Supreme Court declared an amendment to the Colorado Constitution that prohibited the state and its local subdivisions from granting any protection from discrimination based on sexual orientation unconstitutional under the Equal Protection Clause. The Court held the amendment unconstitutional because it singled out a certain class of citizens for a disfavored legal status, resulting in the inference that the disadvantage imposed was merely a result of animosity towards the class.
Judge Reinhardt reasoned that Proposition 8 was extremely similar to the amendment ruled unconstitutional in Romer. Both amendments deprived homosexuals of an existing legal right based solely on their sexual orientation and thus resulted in a classification that produced a difference in legal rights based on their sexual orientation. In order for the state to classify a group for differential treatment under the law the state must demonstrate that it has a legitimate interest in the classification. For the classification to withstand constitutional scrutiny under the Equal Protection Clause, the reviewing court must be satisfied that the state had a rational basis in enacting such legislation.
Proponents of the amendment and various amici argued to the Court that there were four rationales behind Proposition 8 that advanced California’s interest in treating same-sex and opposite-sex couples differently. First, Proponents argued that California has a significant interest in childrearing and responsible procreation which Proposition 8 protected. Proponents argued that children fair better when raised by two opposite-sex adults and that Proposition 8 increased the likelihood that a child would be raised by opposite-sex adults by forbidding marriage between same-sex couples. The Court found this reasoning irrational because Proposition 8 had no effect on same-sex couples’ ability to raise children under the “domestic partnership” laws of California. Because same-sex and opposite-sex couples are granted the same rights related to childrearing, which the enactment of Proposition 8 did not effect, the Court held it was not rational to believe that California had an interest in limiting the right to raise children solely to opposite-sex couples.
Similarly, the Court found that the Proponents’ related argument regarding responsible procreation was irrational because it was premised on the idea that the title of marriage encourages individuals to engage in responsible procreation, i.e. less accidental pregnancies. Proponents reasoned that because homosexuals cannot possibly procreate, the title of marriage offers them no incentive and thus should not be offered. The Court rejected this argument because opponents of Proposition 8 did not request that the state give same-sex couples the right to marry. Rather, the opponents argued against the withdrawal of the access of marriage for same-sex couples. The Court reasoned that in order for California to have had a legitimate interest in the withdrawal of the right to marriage, Proponents of Proposition 8 would have had to demonstrate that opposite-sex couples were more likely to engage in irresponsible procreation when same-sex couples were granted the right of marriage. As the Court ultimately concluded, the ‘responsible procreation’ argument fails rational basis review because no data indicated that prohibiting same-sex couples from marriage decreased the likelihood that opposite-sex couples would engage in irresponsible procreation.
Second, Proponents argued that Proposition 8 advanced California’s interest in ‘proceeding in caution’ when contemplating changes in the definition of ‘marriage.’ Although the Court seemed to concede that in the abstract this could very well be a state interest, the Court, in the context of the effect and passage of Proposition 8, found that there was no rational connection between the statute and the alleged interest of the state. Ultimately, the Court deemed there was no rational connection between “proceeding with caution” and enacting a definitive ban on marriage for same-sex couples that was unlimited in time and could only be reversed by another amendment to the state constitution. Proposition 8 effectively implemented a ban against marriage for a portion of the population which could only be lifted by the constitutional amendment process, which requires a petition with the signatures of eight percent of eligible voters as well as approval by the majority of California voters at a subsequent election to enact any changes. As a result, the Court refused to find any rational basis between “caution” and the draconian effect of Proposition 8.
Third, various amici curaie argued that California had an interest in protecting religious liberty by enacting Proposition 8. The religious liberty interest to be protected grew out of a concern that if same-sex couples were granted the right to marriage, religious organizations would be punished under California antidiscrimination laws for their refusal to recognize or provide services to families of same-sex couples. However, California has no religious exemptions barring the use of public accommodations from homosexuals on the basis on their sexuality. Thus, the Court found that there was no basis for the belief that the purpose of Proposition 8 was aimed at carving out an exclusion in California law where none had existed before. Furthermore, the Court reasoned that an argument for the implementation of religious exemptions was better framed as an appeal to the California legislature instead of the judiciary.
Fourth, various amici argued that California’s purpose in the enactment Proposition 8 was to ensure that children would not be taught that same-sex marriages are equal to opposite-sex marriages. However, the Court found that both prior to and after the passage of Proposition 8, no schools in California had been required to teach anything about same-sex marriage. Instead, under California’s Education Code, schools and teachers are specifically prohibited from giving any instruction to their students that discriminates on the basis of sexual orientation. California students were not educated about either the inferiority or superiority of same-sex marriage. The Court also argued that children and the education system are not static; rather, students learn about changes in society from the world around them. As a result, the Court refused to find that California had an interest in passing Proposition 8 to independently ensure that students would not learn about society’s evolving concepts of legal rights for same-sex partners.
Because the Court could find no legitimate purpose behind the passage of Proposition 8, the Court was left with the “inevitable inference” that the amendment was passed as a result of animosity towards a class of citizens. Romer, 517 U.S. at 634. Such animosity, the Court found, was the consequence of disapproval of the lifestyles of gay and lesbian persons by the constituents of California. The Court’s ‘inference’ was further supported by the climate in which Proposition 8 was passed. The campaign to pass the measure was heavily centered upon stereotypes demonstrating that same-sex relationships were inferior to opposite-sex relationships. For example, Proposition 8 strategists later explained that they aimed to alienate same-sex and opposite-sex persons by conveying a message that homosexuals lived an unsavory lifestyle to which children should not be exposed..
In light of all of the circumstances that surrounded the passage of Proposition 8, its disparate treatment of a class of persons based on their sexual orientation, and the lack of any discernable legitimate state purpose behind the measure, the Ninth Circuit held the amendment to be in direct conflict with the Equal Protection Clause of the Fourteenth Amendment and thus unconstitutional.
There is no doubt that the Proposition 8 controversy in California raised several constitutional questions, which have yet to be resolved in the Ninth Circuit’s decision. The interesting factual scenario arising out of California is unique: a constitutional amendment withdrew rights that were interpreted as fundamental by the California Supreme Court under their constitution, which same-sex couples had come to rely on. The question before the Court was not whether a state can prohibit gay marriage. Rather, the question was whether a state can deprive a class of persons a fundamental right via constitutional amendment where that amendment/deprivation served no legitimate purpose. The Court specifically addressed, and made clear that they would not reach the question of whether homosexuals had a right to marriage.
Promptly after the Ninth Circuit ruled that Proposition 8 was unconstitutional, the Proponents of the amendment petitioned the Ninth Circuit to hear the case en banc. If the Ninth Circuit refuses, it is likely that the Proponents will file for a petition for certiorari with the Supreme Court of the United States to determine whether or not the amendment does in fact violate the Fourteenth Amendment’s Equal Protection Clause. However, it seems unlikely that the Court would grant the petition, because the question of gay marriage has become so inherently politicized that a ruling for or against would weaken the credibility of the Court and enter it into a hotly contested partisan battle.
For now, the 52.3% of California citizens who refuse to recognize the basic right of marriage between two consenting same-sex partners will have to wait to determine if the Ninth Circuit will agree to rehear their argument en banc, or if their en banc request is refused, if the Supreme Court of the United States will accept their petition for certiorari. For now, the Ninth Circuit’s decision is binding precedent and if the decision remains undisturbed the ruling will stand.
Mary O'Rourke is currently a 2L at Duquense University. She is a Research Assistant at the Duquesne Center for Legal Information as well as a Legal Intern at the Allegheny County District Attorney's Office. Mary earned her undergraduate degree at Temple University in Philadelphia, PA, with a major in Criminal Justice and minor in Political Science. She will graduate from Duquesne Law School in 2013 and may be reached at marylorourke@gmail.com.
