9th Circuit rejects Prop 8: what’s next?

Two judges of a three-judge panel of the U.S. Court of Appeals for the 9th Circuit have just ruled that California’s marriage amendment, approved by voters in November 2008, violates the U.S. Constitution’s 14th Amendment, which was ratified in 1868.

The trial court judge had ruled that any definition of marriage as the union of a man and a woman was unconstitutional. Today’s decision professes to be narrower in that it only applies to California. The logic offered in support, such as it is, is that since same-sex couples could marry by court order from May to November 2008 and California voters did not strike down laws allowing same-sex couples the benefit of marriage, the only reason voters could have had for approving Proposition 8 is that they hated gay people(?!). Most reasonable observers would have come to the opposite conclusion – that Californians wanted to protect the unique status of marriage as the union of husband and wife because of its contributions to society but wanted to bend over backward to be fair by not taking away other rights in California law. 

The basic point to make about this decision is that it very effectively accomplishes one thing: It elevates the idea of judicial supremacy as the primary constitutional value. It is more important, the court is saying, to preserve the conceit that the courts can read into state and national constitutions rights that no one knew or would have believed were there than to allow voters to come to a different conclusion about the basic laws by which they will be governed.

As a practical matter, the next steps will probably be to ask for the full 9th Circuit to review this decision. There is good reason to believe the two judges in the majority were highly unrepresentative. If that court does not correct the error, the U.S. Supreme Court will need to do so. Whatever happens, we can expect to see further lawsuits filed to try to stretch the reasoning in today’s decisions to other states. Stay tuned …