– violated both the Due Process Clause and the Equal Protection clause of the 14th Amendment to the U.S. Constitution. The full decision and supporting documentation has been made available by the Court on its website.
From a legal perspective, with respect to the conclusions of law drawn in the opinion, there are at least three particularly interesting aspects worthy of discussion.
ONE – In the Due Process analysis, the Court was faced with the preliminary question of whether the Plaintiffs were seeking to protect a fundamental right (the right to marry) or create a new right (the right to gay marriage). It felt it was the former, and defined the issue as whether “marriage” was a fundamental right, not whether “gay marriage” was one. In this instance, that made all the difference in the outcome, because the argument that “gay marriage” is fundamental is almost certainly a losing one. On the other hand, “[t]he freedom to marry is recognized as a fundamental right protected by the Due Process Clause” (Decision at p. 110). Because the Plaintiffs sought to exercise the fundamental right to marriage, the legislation impinging on that right was subject to strict scrutiny. Interestingly, the Court largely glossed over the strict scrutiny analysis, referring to the rational basis analysis it conducted later on and saying that “As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim” (Decision at p. 117). While it is certainly true that no law that fails rational basis review could ever survive strict scrutiny, it was surprising to me that the Court did not give a detailed analysis using strict scrutiny as well, if only to make the opinion that much more “bullet-proof” on appeal.
TWO – Though the Court did ultimately conduct a standard rational basis review of the legislation for purposes of Equal Protection, there is considerable dicta in the opinion suggesting that discrimination on the basis of sexual orientation might be subject to a more stringent standard of review. Ultimately, it even goes so far as to say that “the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex” (Decision at p. 121) and “strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation” (Decision at p. 122). Despite this dicta, the Court conducted the Equal Protection analysis using the rational basis review. Nevertheless, the language provided in favor of a higher standard of review for sexual orientation discrimination is likely to be quoted and cited in future court cases.
THREE – Realizing that the rational basis analysis is where the battle is likely to be fought on appeal, the Court took particular care to address each of the possible rationales behind Prop. 8 individually and in turn. It specifically listed each the six rationales offered - (1) reserving marriage as a union between a man and a woman and excluding any other relationship from marriage; (2) proceeding with caution when implementing social changes; (3) promoting opposite sex parenting over same-sex parenting; (4) protecting the freedom of those who oppose marriage for same-sex couples; (5) treating same-sex couples differently from opposite-sex couples; and (6) any other conceivable interest (Decision at pp. 123-24). It then addressed the purported interests, each under a separate sub-heading and each with extensive reference to the findings of fact. This is seemingly done in order to make it more difficult for the Ninth Circuit Court of Appeals, or ultimately the Supreme Court, to overturn the decision. This is because appellate courts are generally loathe to contradict findings of fact from the trial court, and it is those findings of fact that served as the foundation for these conclusions of law.
For more information on the litigation associated with California Proposition 8, check out some the following resources:
Websites
Prop 8 Trial Tracker
Proposition 8 News, Updates and More
Prop8case.com
News Releases
ACLU Hails Historic Decision And Urges Efforts In Other States To Ensure Success On Appeal
FoxNews.com – Lawyer Battling Prop 8 Says Ruling Not 'Activism,' Forecasts Supreme Court Fight
New York Magazine – Judge Hands Victory to Proposition 8 Opponents, Gay-Marriage Ban Overturned
SFGate: Home of the San Francisco Chronicle – Prop. 8 trial frames debate on marital rights
The Washington Post – Topic A: Impact of same-sex marriage ruling weighed
Blogs
AC360° Blog
Prop 8 on Trial (A project of Berkeley Law at the University of California, Berkeley)
The California Report and KQED
Wall Street Journal Law Blog
Assorted Blogs on WordPress.com about Proposition 8
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