Post Prop 8, Are All Gay Marriage Bans Unconstitutional?

Eminent lawyer and Proposition 8 attorney David Boies has argued that the Supreme Court’s decision in the Proposition 8 case effectively invalidates all state bans on marriage equality. Is this true? And if so, why?

Boies, who argued for plaintiffs during the historic Proposition 8 trial, appeared on CNN’s State of the Union to discuss the case and its implications.

During that discussion, he told host Candy Crowley, “First, remember that the United States Supreme Court found that the plaintiffs in this particular case had standing to attack Proposition 8, but the people who were supporting Proposition 8 did not have standing to appeal our victory in the trial court.

“So that reinstates the trial court decision that says that all bans on gay and lesbian marriage violate the equal protection and due process clauses of the 14th Amendment.”

This is a reference to then District Court Judge Vaughn Walker’s 80 findings of fact that demolished arguments against marriage equality and his wider ruling that Proposition 8 is unconstitutional per the 14th Amendment, and even under the lowest judicial reading, the rational basis test.

Technically, because the Supreme Court decided that Proposition 8 supporters did not have the right to appeal that decision because they lacked standing, more on the standing debate here, this means Vaughn Walker’s ruling goes back into force (as opposed to the Ninth Circuit’s narrower ruling).

As such, Boies continued, this ruling should not just apply to California either because it specifically and articulately undercut all state marriage bans by invoking the 14th Amendment.

“That is a ruling that says under the constitution, not just in California, but under the constitution, which of course is a national constitution, the 14th Amendment applies to all 50 states…”

Host Crowley then interrupted, saying, “But you know, David, a lot of people thought that this was more about states’ rights, allowing the states to decide for themselves.”

Boies refuted that, offering, “If they were allowing the states to decide for themselves, they would have allowed California to decide for itself. California passed Proposition 8. So, what the court was doing was invalidating California’s choice, and that’s exactly what the courts are supposed to do under the 14th Amendment.”

Combine this with the Supreme Court’s decision to strike down Section 3 of the Defense of Marriage Act, not just on states’ rights grounds but on equal protection, and Boies’ assertion looks even more interesting.

We also have to look at some of the quieter moves the Supreme Court made last week.

While the DOMA and Proposition 8 decisions quite rightly garnered a lot of attention, the Supreme Court also dismissed a raft of other marriage equality related decisions. In fact, 10 in total.

Among them, one suit involved Arizona governor Jan Brewer’s refusal to give state employees in same-sex relationships equivalent partnership benefits.

Arizona passed a law in 2009 that repealed domestic partner benefits for state workers. The Brewer administration argued that fiscal crisis meant the state could not afford to extend healthcare benefits to employees’ dependents if they weren’t married.

The administration has always contended that this was a fair policy as it applied to both straight and gay couples. However, as gay couples cannot marry under state law, they are de facto excluded from all such partnership rights, unlike straight couples who have the recourse of marriage.

Successive courts including the 9th Circuit Court of Appeals found against the law on grounds of it violating the 14th Amendment, but the Brewer administration hoped the Supreme Court would give deference to state rights.

In turning down the case without comment, such hopes were dashed. Brewer issued a statement saying:

“This case has never been about domestic partners, same-sex or otherwise. It is always been about the authority of elected state officials to make decisions with which we have been entrusted by the voters.”

We must be clear in pointing out that these two cases are very different and do not inform each other directly except so far as they rely on 14th Amendment protections. It does however serve to show the growing body of legal opinion that is marking out gay rights within the 14th Amendment’s reach.

While Brewer’s aping of voter entrusted power might be tiresome because it implies her election gives her the right to define constitutional law rather than abide by it, it is precisely this point Boies appears to be highlighting.

Constitutional rights trump state authority unless the state has a compelling interest to curtail those rights, and though the Supreme Court has yet to decide on whether states can legitimately define away gay marriage rights, Boies is essentially pointing out that with Vaughn Walker’s ruling now in effect, the question has already been answered.

It should be noted however that the Proposition 8 case is not technically precedent setting as it applies only in the State of California. Furthermore, it would be wrong to infer that the Supreme Court meant this in issuing its narrow standing ruling.

Nevertheless, Boies interpretation of the legal landscape post-Proposition 8 is intriguing, and no doubt a number of cases will soon be offered to test this theory.

Image credit: Thinkstock.


Scot Roberts
Scot Roberts4 years ago

The civil rights movement of the 50s and 60s played out much the same way. It took a few people to take a stand and then it grew and grew. Individual states fought it but eventually succumbed to equal rights for all which is a federal issue, not a states issue. To see clips of the way people felt back in those days is shocking by today's standards. And for those who say this isn't the same really is.

Scot Roberts
Scot Roberts4 years ago

That's true Janet......and that was behind why they overturned section 3 of DOMA.

Kimberlee W.
Kimberlee W4 years ago

Look - it's going to be this simple - what's going to have to happen is that it will just have to be adjudicated in court after court, up the state's legal heirarchy, until it reaches that Supreme Court. Then, based on what Kennedy wrote on DOMA I believe it was, about the dignity of marriage not being denied people on the basis of orientation, that basic unfairness which our nation is not known for nor should, it will be granted.
It's going to be a slog, but any judge that doesn't find in that favor, depending on how clumsily the case is presented by the plaintiffs that is, will forever be known as "Unfair", which is a death sentence for a judge's career. You can be biased, but Do Not leave any paper trail someone can easily point to and say you suck! You're not fair, you're not fit to be a judge.
It's just a matter of time. The state courts will have to fall like slow dominos.

janet T.
janet t4 years ago

Seems to me these marriage bans have to fail in the long run. If someone marries in a state that allows gay marriage, and the federal government has to recognize that marriage in SS, medicare etc. then they move to a state that has a ban on same sex marriage, what can the state do?? They can't annul the marriage, they can't make them move out of the state, and they cannot keep them from collecting their benefits. Everything they can try will just get them sued. So eventually, all of the states will have to bow to the majority of the country and acknowledge and allow same sex marriage.

Eternal Gardener
Eternal G4 years ago


Darryll Green
Darryll Green4 years ago

you're all making a big deal out of the preposition 8, have you payed attention to the doma ruling, the reversed sec. 3, sec.2 allows the states to continue to pass individual laws promoting marriage between a man and a woman only if they want to, sorry to bust your bubble

Carole L.
Carole L4 years ago

sylvie a.
“Personne ne devrait avoir à discuter cette situation; cette situation ne devrait même pas exister. En fait, chacun devrait être libre d'être et aimer qui il veut aimer.”

Tout à fait vrai.

Scot Roberts
Scot Roberts4 years ago

Brad S, You're question was....

"Why do we have to call it gay marriage? This just promotes issues with the religious. Why not just call it a legal adult partnership with all the benefits of marriage? It isn't rocket science."

That's a reasonable question. I had the same question myself and asked my brother and many mutual friends of ours who are all gay. The general response was along the lines of "separate but equal." Back during segregation they made blacks go to different schools... separate but equal. Blacks had to drink out of different water fountains, eat at different lunch counters, wait in different rooms, use different restrooms.....all separate but equal. Our society doesn't work that way. The 14th amendment of the U.S. Constitution clearly states:

- No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. -

That answer was good enough for me and I couldn't disagree.

Nils Anders Lunde
PlsNoMessage se4 years ago


Anders Jonsson
Anders Jonsson4 years ago

So, what the Us Supreme court did was open a big can of worms onto the haters and anti gay wrights mongers! Serves them right!
Go Us Supreme court!
And as Timothy W says: A majority should never be given the right to vote on matters concerning a minorities rights.
Under that premise, Prop. 8 is illegal and void!