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.

About 7 states (sans California) allow gays and lesbians to marry.  About 12 or so recognize civil unions or domestic partnerships for gays and lesbians.  While 39 states specifically ban gay marriage.  Moreover, the federal government doesn’t recognize gay marriage.  (Also note that the California Supreme Court found Proposition 8 to be constitutional under the California Constitution, which is usually regarded as providing more protection than the US Constitution.)

Compare with the history of anti-miscegenation laws when it finally was heard by the Supreme Court in Loving v. Virginia: Only 16 states had anti-miscegenation laws still in effect by the time Loving was decided.  14 states had previously repealed their anti-miscengation laws between 1948 to 1967.  11 states repealed their anti-miscengation laws before 1887.  The rest had no laws regarding marriage between races.  Moreover, the federal government had already passed the War Brides Act, allowing soldiers to bring their spouses back from overseas, in 1945.  Further, the California Supreme Court found anti-miscegenation laws to be unconstitutional in 1948!  From this, it was plain to see that anti-miscegenation laws were on their way out.

Gay marriage does not have the same history of support nationwide.  And Loving is often cited as the case that justifies gay marriage.  At this stage, approaching the Supreme Court with gay marriage without the country’s support is like going to the Supreme Court to rule that first-cousin marriage** is a constitutional right.  It will put the Supreme Court in a corner that they will desperately try to side-step or rule against completely.


** Oh, and California — you allow first-cousin marriage. Even Kentucky is not that bad. Geez.


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