Prop 8 Decision Written For Justice Kennedy


“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.


Related Stories:

Breaking: CA Gay Marriage Ban Found Unconstitutional-Again

Santorum: Gay Partnerships Doesn’t Benefit Society


Photo from steakpinball via flickr.


Luna ButterflyMoon
Past Member 5 years ago

No on Prop. 8, justice is done.

Jane H.
Jane H5 years ago

Well, I certainly hope Justice Kennedy is duly impressed.

Lindy E.
Belinda E5 years ago

I think Weritas W. has an excellent idea. Let's abolish "marriage" as a legal term, and replace it with "civil union." When a couple wish to enjoy the legal benefits of marriage - joint income tax return, shared health insurance, visiting in the hospital, and all that, they get a license from the state, which is required to issue it, and they go before a justice of the peace or whatever to give them a chance to back out or affirm in public.

If they want to be married in the eyes of their church, they go to the church and make appropriate arrangements. The church MAY refuse, on the basis of their beliefs.

The church marriage doesn't grant legal rights, and the civil union doesn't make you "right" with your church. Complete separation of church and state! Problem solved.

Lynn C.
Lynn C5 years ago


Carole C.
Carole Chowen5 years ago

Weritas W. has it figured out! My parents were married by a Justice of the Peace, with just one friend as a witness. They had a long and loving life together. The best "weddings", with the best long running relationships that I have attended were non religious.

Weritas Weritas
Wendilyn E5 years ago

Frankly, the issue is not MARRIAGE, which in a Country that truly has a separation of Church and State should be a RELIGIOUS RITE OF PASSAGE and not a State controlled contract. If we truly had separation of Church and State, EVERYONE would have a CIVIL UNION, a contract under the State, and NOT a religious rite of passage aka MARRIAGE. So, here is a quick fix, ditch the terminology of Marriage as a thing that the State controls and make them all Civil Unions... then let what ever two consenting adults who want to enter into a legally binding commitment and contract to one another be able to do so. Marriage would then be limited to a rite of passage performed by the religious institution of your choice. With the caveat, of course, that a religion can not be forced to perform a marriage for a couple who does not fit what that religion believes. That way, hopefully most folks would be happy, especially the Wedding industry who makes billions off of everyone ;)

Vivianne Mosca-Clark

some peoples kids.........
No one has the right to dictate what another person should do while having sex. As long as it is between consenting adults. Keep your nose on your own face. Why we have to have a court or religious person telling us how to have our own personal sex is still beyond me.

Tim Cheung
Tim C5 years ago


Joe R.
Joe R5 years ago

Slowly is right. I hope I live to see same-sex marriage legal nationally.

Karen and Ed O.
Karen and Ed O5 years ago

Rob K. and Bruce S.

Actually Proposition 8 came about because the City and County of San Francisco declared they would honor any same sex marriages performed in the city. Hundreds of people travelled to City Hall where marriages were performed and it was a great day for gays, lesbians and people who believe in civil rights. Unfortunately we have in California a faction of those people who think that what goes on in peoples' private lives is their business. Why, I don't know. Maybe they have too much time on their hands.
Whatever it is, the Fifth Amendment still says, "No person deprived of life, liberty, or property, without due process of law...." And as far as I am concerned who you want to spend the rest of your life married to is part of your life and your liberty.