Score One For Marriage Rights! Prop 8 is Unconstitutional

Back in the good old days of 2008, same-sex marriage was legal in the Golden State of California for 143 days, and during that time 18,000 same-sex couples legally tied the knot. The existence of those 18,000 is why Proposition 8–which made same-sex marriage illegal later that year–is unconstitutional, according to today’s ruling by the Ninth Circuit Court. By a 2-1 vote, a court panel upheld the historic 2010 decision by Judge Vaughn Walker to strike down Prop 8 as unconstitutional.

Since Prop 8 set out to “eliminate the right of same-sex couples to marry in California,” without providing any legitimate state interest for doing so, the appeals court calls that open discrimination:

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of “marriage,” which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.

The court rejected one of the more ridiculous Prop 8 proponents’ arguments–that the constitutional ban “advances California’s interest in responsible procreation and childrearing”–and denied the much-criticized assertion that same-sex marriages cause any harm to straight ones:

It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman.

The court also suggested that Prop 8 was “born of disapproval of gays and lesbians,” noting that Prop 8 was “presented to voters in terms designed to appeal to stereotypes of gays and lesbians as predators, threats to children and practitioners of a deviant ‘lifestyle.'”

Despite its strong wording, the decision is disappointingly narrow, applying only to the state of California and not to all of the western states under the Ninth Circuit’s jurisdiction (Arizona, Nevada, Oregon, Washington, Idaho, Montana, Alaska and Hawaii). But the precedent could nonetheless have far-reaching effects: in states like Iowa, where marriage equality has been granted but is contested, or states like Maine, where marriage rights were granted to same-sex couples and then taken away. At stake is the issue of second-class citizenship. As the court noted,

The elimination of the right to use the official designation of “marriage” for the relationships of committed same-sex couples send[s] a message that gays and lesbians are of lesser worth as a class–that they enjoy a lesser societal status.

The constitutional grounds for denying Prop 8 lie in the equal protection clause in the 14th Amendment of the federal Constitution, which the court says was violated by using an initiative “to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so.” The appeals court even injected some humor into their ruling, invoking Shakespeare’s Romeo and Juliet to make the point that domestic partnership is not the same as marriage, and that separate is not equal:

A rose by any other name may smell as sweet, but to the couple desiring to enter into a committed lifelong relationship, a marriage by the name of ‘registered domestic partnership’ does not.

The judges drove the point home with yet another laugh line:

Had Marilyn Monroe’s film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous meaning.

It’s unclear whether gay marriage rights will be immediately restored in California or whether they will be placed on hold, pending further appeals. Let’s hope that Proposition 8 will be stricken from the books right away so that lesbians and gay men will be able to marry the millionaire or average Jane or Joe of their dreams.

Read More:


Audrey Bilger is the current president of Reed College, and previously served as vice president and dean of Pomona College. She is also a former professor of literature at Claremont McKenna College and faculty director of the Center for Writing and Public Discourse. She also teaches gender studies, and occasionally yoga. Her latest book, which she co-edited with Michele Kort, is Here Come the Brides! Reflections on Lesbian Love and Marriage (Seal Press, 2012). She is also the author of Laughing Feminism, editor of an edition of Jane Collier’s 1753 satire "An Essay on the Art of Ingeniously Tormenting," and a frequent contributor to Bitch magazine. Her work has been featured in The Paris Review, Rockrgrl, the Huffington Post and the Women's Media Center.