Prop 8: The importance of being ‘married’
The 9th Circuit ruled today that California’s Proposition 8 was unconstitutional, saying that it violated the Equal Protection clause of the Fourteenth Amendment of the U.S. Constitution. For a summary of the ruling and a link to the opinion itself, check out SCOTUSblog.
Most of us probably remember that Prop 8 was the anti-gay-marriage initiative that California adopted a couple years ago. More specifically, though, Prop 8 was a public initiative that amended the California Constitution to prevent same-sex couples from obtaining the official designation of ‘married.’ It left in tact all of the rights afforded to gay and lesbian couples — the same rights that married opposite-sex couples are entitled to — but it forbade them officially to call these relationships ‘marriage.’
One might argue–as indeed the proponents of Prop 8 did–that if none of the substantive rights of gay couples were taken away, the lack of official designation shouldn’t be a constitutional problem. Having the rights, after all, is more important than what they are called. But the 9th Circuit disagreed:
All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. 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.
- Perry v. Brown. 9th Circuit 10-16696. (from Judge Reinhardt, writing for the panel that decided the case)
In other words, what you call something does matter. And this is a powerful idea. The 9th Circuit says it doesn’t care if you leave the substantive rights in tact; it doesn’t matter if you maintain all the other entitlements that come along with the word ‘marriage.’ No– certain words have such special significance, such special power, that to deny access to their use alone is enough to violate a right.
So indeed – the 9th Circuit’s ruling came down to the fundamental importance of being, specifically and officially, ‘married.’
johnwcowan, 
John Stokes 2:40 pm on February 7, 2012 Permalink |
“Had Marilyn Monroe’s film been called ‘How to Register a Domestic Partnership with a Millionaire,’ it would not have conveyed the same meaning as did her famous movie, even though the underlying drama for same-sex couples is no different.”
-Judge Reinhardt putting the point slightly differently
johnwcowan 2:57 pm on February 7, 2012 Permalink |
Note that there is also an equivocation on married. In Romer v. Evans, gay people were denied certain rights tout court. But, as the anti-marriage-equality folks are forever pointing out, no adult in America is denied the right to marry as such — only the right to marry certain other adults.
I hope that when the Supremes take this up, as they inevitably must either now or later, that they will look back to Loving v. Virginia, which also purported to allow everyone the right to marry, just not people of another color. The Court struck that one down, and just before Mildred Loving died in 2008, she expressed herself on the subject of gay marriage: she was for it.
John Stokes 3:25 pm on February 7, 2012 Permalink |
Good point. The biggest problem with relying on Loving is that it was a race case and thus triggered strict scrutiny. Sexual orientation only gets rationality review. So it’s not clear that Loving would help on the Equal Protection front.
But there’s still some language in Loving that could buttress the Due Process claims. “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.”
This is reminiscent of the language in right-to-privacy cases, e.g. Griswold, Roe, and Casey, saying the state can’t make reproductive decisions for you (the freedom to make these decisions is a fundamental right, so laws that limit that right are put under strict scrutiny). This got pushed farther in Romer and Lawrence, where the Court said the state can’t make decisions about private sexual activity/partners. So the Loving language might be employed to extend the claim to decisions about who to marry — saying that this, too, is a fundamental right and thus gets analyzed under strict scrutiny.
John Stokes 10:45 pm on February 7, 2012 Permalink |
Meant to post this earlier, another good point from a close friend: The whole reason that Prop 8 was passed in the first place was that its proponents thought the word “marriage” was special to them. If the point were the rights associated with the word, they would either have done nothing or passed an initiative that affected the substantive rights of same-sex couples. Instead, the focus was on whether or not same-sex couples could use the term itself — an important difference.
Laura Heymann 2:52 pm on February 8, 2012 Permalink |
Shout-out from the Economist: http://www.economist.com/blogs/johnson/2012/02/gay-marriage
A right to be called "married" in California | G7Finance.com - Finance News & Personal Finance Resources 2:56 pm on February 8, 2012 Permalink |
[...] of the curious facts is that the linguistic nature of Prop 8 has been sidelined. But as John Stokes reminds readers today, it’s the central issue. The introduction of gay marriage in California created no new [...]
John Cowan 1:58 am on February 11, 2012 Permalink |
The three levels of scrutiny are judge-made law, and judges can change them.
John Cowan 4:31 am on February 12, 2012 Permalink |
I’ve read the whole opinion and dissent now, and it seems clear that the court remains within the bounds even of rational-basis scrutiny. There is no constitutional right to be on welfare, but a law that prevented Greek-Americans from receiving welfare would be facially unconstitutional, even though people of Greek descent don’t constitute a suspect class. By analogy, there is no constitutional right to marry, but given that people are allowed to marry, removing that right from a particular group is not the kind of law that our constitution allows our legislatures to pass.
As for the dissent, it’s not so much about rational-basis review as about irrational-basis review. The learned judge seems to think that it’s perfectly fine for a legislature (or the sovereign people) to criminalize the making of strawberry ice cream if they believe that eating strawberry ice cream increases the likelihood of criminal behavior (which is undoubtedly a legitimate state purpose). The fact that that idea is preposterous seems to make no difference to him.
Gay marriage: A right to be called "married" in California « M. Ulric Killion's space 11:13 am on February 12, 2012 Permalink |
[...] of the curious facts is that the linguistic nature of Prop 8 has been sidelined. But as John Stokes reminds readers today, it’s the central issue. The introduction of gay marriage in California created no new [...]