Prop 8 Overruled by the US 9th Circuit Court – Now What Does it Mean?

YEAH!! Score one for the liberal/progressive/gay rainbow flag/punk rock/queer/I am not narrow-minded crowd(s). This decision means that prop H8 as it became known in many left circles will no longer be law in the State of California.

Yes, let’s celebrate. Have a beer or a coffee or march in the streets. Be loud and proud, queer and allied, party! We have won a battle, but not quite the war.

Congratulations are in order because yet another court has confirmed that Proposition 8 has no place in a free open society that separates church and State. That Country does not allow the civil rights of a minority to be voted on.

So lets spend the next few days reveling in a victory, then we need to get back to work because this isn’t over. Why might you ask? Let me lay this out for you:

The way this 9th Circuit decision is written is very limited. Courts have double speak down to an art form. This decision by the 9th Circuit is based on Romer v Evens primarily. The good part of that is the Romer decision is for Gay Rights. The bad part is that it has nothing to do with marriage or the assertion that marriage is a fundamental right. In citing Romer the 9th Circuit is addressing Justice Kennedy the swing vote on the Supreme Court directly, however appeals court judge Stephen Reinhardt did not say gays and lesbians have an equal right to marry under the Constitution. Instead, he said California’s voters violated the Constitution because “Prop. 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,”. (emphasis added)

Currently our Supreme Court is leaning conservative, politically and socially. We did get the Lawrence v Texas ruling out of them in 2003  however, I am not convinced that the Supreme Court would take this case, or if they did, that marriage equality proponents would get the outcome they desire. There is a 4/4 split on the court with Justice Kennedy as the swing vote, he did write the Lawrence opinion, however the 9th Circuit cited Romer, which Justice Kennedy also wrote but that decision turns on the exclusion of rights not on a concept of enforcing a fundamental right. The Proposition 8 case doesn’t address issues of differing laws between states nor is it framed as an issue of a fundamental individual right, therefore most likely the Supreme Court will not grant this case a hearing.

The Supreme Court hears about 1% of the cases that are appealed to them each year, normally the court hears cases based on differing laws in states or the violation of a fundamental right, with the opinion handed down by the 9th Circuit Court the battle over Proposition 8 has neither of these issues. Basically, this decision is limited to California, and if the Supreme Court heard the decision they could still issue a ruling that only affected California.

Marriage equality most likely will still have to be fought State by State, regardless of this latest victory for Californians.

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