Gender & Sexuality Law Blog

The 9th Circuit just issued its decision in the Prop 8 case, upholding by a vote of 2-1 the lower court’s finding that Prop 8 was unconstitutional.  They did so, importantly, on very narrow grounds – resting the holding on the specific facts and circumstances surrounding the passage of Proposition 8.  They made clear that their decision did not address the general constitutionality of same-sex couples’ right to marry under the constitution, but rather focused on California’s withdrawal of marriage rights to a group that had already been allowed to marry.  In the end the Court of Appeals found that Prop 8 was not justified by the “legitimate” reasons offered by its defenders: advancing California’s interest in childrearing or responsible reproduction (sic), religious freedom, or the rights of parents to control their children’s education.

The Court found that “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 Constitution simply does not allow for ‘laws of this sort.’”

Not bad language, really. Let’s hope the narrowness of the decision keeps the Supreme Court from taking it up and creating a dangerous mess.  But then we’ve first got to convince Olson and Boies that this is not the time to have the Supreme Court address the larger question of the Constitutionality of barring same-sex couples from marrying.

The full opinion is here.  The decision is 133 pages long and these observations are from a quick, initial reading.  More analysis to come.