Stop the HEIGHT!

Today, the Ninth Circuit decided that California’s Proposition 8 was unconstitutional. Twitter became abuzz with the news. After reading the decision, I understand the celebration but find that it will be short-lived.

This decision was extremely narrow. Narrow. It did not even touch the issue of whether gay marriage is a constitutional right. In its comparison with Romer v. Evans, the Ninth Circuit stated:

There is one further important similarity between this case and Romer.  Neither case requires that the voters have stripped the state’s gay and lesbian citizens of any federal constitutional right.  In Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination; here, Proposition 8 deprived same-sex partners of the right to use the designation of ‘marriage.’  There is no necessity in either case that the privilege, benefit, or protection at issue to be a constitutional right.  We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.

Today’s decision ruled Proposition 8 unconstitutional under the 14th Amendment because it took away rights that were granted (by the California Supreme Court when it ruled that the statues banning gay marriage was unconstitutional under the California Constitution) on the basis of sexual orientation with no legitimate government interest.  It was the change in the law that was a denial of equal protection, not the denial of marriage to gays.  This implies that had there been no laws on the books allowing gay marriage, Proposition 8 may have been held to be constitutional. Or at least, the court would have had to decide whether gay marriage was a constitutional right.

What are the implications then?  Well, States in the unique situation where neither gay marriage or civil unions between gays and lesbians are recognized, they could conceivably pass laws that say marriage is between a man and woman, only, and be found constitutional.  Or, they may just stop even taking the small step of allowing civil unions.  And nothing in today’s Ninth Circuit decision will stop them, because the issue decided is tailored to the specific facts of Prop 8 and its history.  Nothing more.

Assuming for the moment that the Supreme Court would hear this case (though, unlikely as it is extremely narrow), this is not the case or the time to take it to the Supreme Court on the side of gay marriage proponents.  Let me elaborate.

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