Experts: Prop 8 Decision a Missed Opportunity

Posted Tuesday, February 7, 2012 by Graham White Tweet Print Icon Proposition 8 SOURCE: AP Photo / Darryl Bush Thousands of demonstrators gathered to listen to speakers and protest the passage of Proposition 8 in 2008. “Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California,” the Ninth Circuit Court of Appeals ruled in a long-anticipated decision announced Tuesday afternoon. The federal appeals court found itself in the national spotlight after delivering a high profile ruling in which it upheld a decision to strike down California’s controversial Proposition 8, which outlawed same-sex marriage in the state. The decision caused a frenzy, crashing the court’s website within minutes of the announcement, and Prop. 8 instantly became one of the top trending topics on Twitter. There’s no doubt that the decision is welcome news for California’s same-sex couples who saw their right to marriage revoked when Prop 8 narrowly passed four years ago. But the decision may not be as far-reaching as marriage equality advocates would have liked. Some policy experts are skeptical that the ruling will have any significant impact outside of California, as the court’s opinion may have been too narrowly tailored. Indeed, the Ninth Circuit largely ignored the sweeping language employed by District Judge Vaughn Walker when Prop 8 was rejected the first time. Walker deemed the ballot proposition unconstitutional on the grounds that “tradition alone … cannot form the basis of a rational law.” Such a rationale, if used by a federal court, would have effectively rendered unconstitutional any state law banning gay marriage. The Ninth Circuit instead struck down Prop 8 because it took away rights that same-sex couples enjoyed prior to its enactment, heavily citing precedent established in the Supreme Court’s decision in Romer v. Evans. The difference is critical. The court’s decision can only be used as precedent in cases where same-sex couples were previously granted marriage rights and then had them rescinded, which is not the situation in the overwhelming majority of the 44 states that do not allow same-sex marriage. The court’s saving grace may lie in the strong likelihood that the Supreme Court will ultimately review the ruling. Should the high court agree to hear the case, it would have the opportunity to reject Prop 8 using a much broader rationale that could potentially legalize same-sex marriage nationwide. Conversely, however, the Court could choose to uphold Prop 8—a decision that would be a devastating setback for the LGBT community—or decide not to hear arguments. The Ninth Circuit’s ruling on Prop 8 should certainly celebrated—but with a caveat, as the specific language of the decision does little to advance the cause of marriage equality on a national level. Graham White is a journalism intern for Campus Progress. You can follow him on Twitter