“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.’”
This was the conclusion of a majority of judges from the 9th Circuit Court of Appeals as they ruled California’s ban on same-sex marriage, Proposition 8, was unconstitutional.
The court didn’t take up the broader question of whether any ban on gay marriage would be unconstitutional, limiting its ruling purely to Prop 8, but it did give 128 pages of reasons why its safe to think it would be. Supporters of Prop 8 can either petition for a rehearing en banc–meaning before the entire 11 judge panel of Ninth Circuit judges or they could appeal directly to the Supreme Court.
And in case they are considering an appeal right to the Roberts Court, Judge Stephen Reinhardt made sure the Court’s key vote–Justice Anthony Kennedy–was listening. Framing of the issues is everything in appellate practice, and Reinhardt’s opinion ground the Ninth Circuit in Romer v. Evans, a key 1996 case authored by Justice Kennedy that struck a Colorado law as unconstitutional because it singled out gays and lesbians for unfair treatment and took away legal rights.
Reinhard’s opinion takes the Kennedy framing and drives the issue home, citing frequently to the decision. “Prop. 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,” Reinhard holds. By framing the decision this way–narrowly so as to apply only to California but expansively in its rhetoric, the decisions gives Justice Kennedy, should the Court take the case, a way to side with the liberal wing of the Court and find Prop 8 unconstitutional without having to make a broad statement of law pertaining to all gay marriage laws currently on the books.
This is how constitutional change happens. Slowly. One case at a time. Today’s historic decision is a step toward the inevitable acceptance of gay marriage and equal in rights, status and privilege as heterosexual marriage.
Photo from steakpinball via flickr.