Proposition 8 ruling: Could it make legislatures gun shy about civil unions?

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Our post about the 9th Circuit Court declaring Proposition 8, California's gay marriage ban, unconstitutional, focused on the Colorado case that spelled doom for the state's anti-gay Amendment 2 circa the '90s. But could this ruling cause problems for measures like the civil unions bill progressing in the Colorado Senate?

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Stephen Reinhardt.
That's one concern of Kyle Velte, a University of Denver law professor who's studied the case. "My fear is that other states may be gun shy to give rights that are similar to marriage to gay and lesbian folks now," she concedes. "Are statehouses going to say, 'Should we pass civil unions that look exactly like marriage except for the word? Because under the Proposition 8 decision, we have a right to that word.'"

Velte notes that the 9th Circuit's majority decision, written by Judge Stephen Reinhardt, "is pretty much based based on Romer v. Evans," the Supreme Court case that overruled Amendment 2. Here's how Reinhardt's ruling introduces the subject:

This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation.... Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was "to repeal" those local laws and "to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances or policies in the future.... The law thus "withdr{ew} from homosexuals, but no others, specific legal protection...and it forb[ade] reinstatement of these laws and policies.

Amendment 2's authors insisted that the initiative didn't discriminate against homosexuals; rather, it simply nixed those laws that made gays and lesbians more equal than the rest of the populace. But Justice Anthony Kennedy, writing for the Supreme Court majority in the case, rejected that assertion. This is how Reinhardt synopsized Kennedy's take:

The Supreme Court held that Amendment 2 violated the Equal Protection Clause because "[i]t is not within our constitutional tradition to enact laws of this sort" -- laws that "single[e] out a certain class of citizens for disfavored legal status," which "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." The Court considered possible justifications for Amendment 2 that might have overcome the "inference" of animus, but it found them all lacking. It therefore concluded that the law "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else."

The 9th Circuit's majority signed on to this view. But in Velte's opinion, Judge N. Randy Smith's partial dissent is just as important.

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N. Randy Smith.
"The dissent disagrees with the application of Romer," Velte notes. "He says that Amendment 2 was more broad than Proposition 8 -- that Amendment 2 really did take away any redress to statutes for GLBT folks, but Proposition 8 only took away a word: marriage. Gay folks in California had all the rights, so it was a surgical strike against one word."

Moreover, Velte believes that the majority decision is so narrowly written that rather than weighing in on the legality of same-sex marriage, "the Supreme Court could punt on this one."

Why? "The 9th Circuit didn't find a fundamental right to marry," she says. "They didn't even address the question. The way the court framed the question was, 'Is it okay to at one point in time grant marriage to gay people'" -- as California did prior to Proposition 8's passage -- "'and at a subsequent point take it away?'"

Page down to read more about Proposition 8, as well as to see two videos and the complete ruling.


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Legislatures don't have any reason to worry about this ruling affecting their civil unions. The whole key to this opinion working was the fact that, however brief, there was a period in time in which gay men and lesbians had the right to marry in California. And the Equal Protection Clause means you cannot take away an existing right from one group of people and not others, unless you have a legitimate reason. The argument doesn't work unless you are taking something away. 

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