Wednesday, September 18

In the know: Proposition 8 overturned


The church bells aren’t ringing yet for same-sex couples in California, but a federal court of appeals ruled Tuesday that Proposition 8, the ballot measure banning same-sex marriages, was unconstitutional and should be repealed.

By a vote of 2-to-1, the Ninth Circuit Court of Appeals decided to enforce the ruling of the now-retired U.S. District Chief Judge Vaughn R. Walker who struck down Proposition 8 and concluded that gays and lesbians have a constitutional right to marriage.

Tuesday’s ruling, however, did not seem to consider the federal right of same-sex couples to marry, referring instead to the violation of the 14th Amendment, which says that no state law may limit the rights of it citizens.

Should the case be appealed to the U.S. Supreme Court as it is expected to, however, I would wager Proposition 8 will likely be found unconstitutional again, albeit not by unanimous decision.

My prediction lies with the justices on the Supreme Court.

The current bench of the Supreme Court is split between liberal and conservative leanings in their rulings ““ five justices are typically considered conservative and the other four generally liberal in their opinions.

Even so, one of the more conservative justices, Justice Anthony Kennedy, has previously served as a liberal swing vote in similarly controversial cases involving abortion and sodomy laws against homosexuals.

Should the Supreme Court hear arguments of both sides comparable to what was heard under Justice Walker’s trial, then the repeal of Proposition 8 would almost be certain since the argument of proponents of the law could not pass under a review of “rational basis.”

In other words, the proponents could not provide enough substantive evidence via their expert witnesses to defend their argument.

According to the record of Walker’s ruling on the case, named Perry v. Schwarzenegger, nine expert witnesses were called by the plaintiffs to prove marriage amendments such as Proposition 8 stigmatize and hurt gays and lesbians on a psychological level, while providing no measurable benefits to the stability of opposite-sex relationships. In addition, economists summoned for the trial testified that the ban against same-sex marriage was costing California business in wedding planning and tourism during a time of recession.

In similar fashion, Judge Stephen Reinhardt, one of the judges presiding over Tuesday’s ruling of the marriage ban and the author of the majority opinion, said Proposition 8′s only real effect was classifying of gay and lesbian relationships as inferior to those of heterosexual couples.

That said, the ruling of the federal appeals court, however, does not undo the ban against same-sex marriages at the moment, which awaits further appeal by its supporters to the Supreme Court.

With the Ninth Circuit’s narrow focus on the violation of the Constitution by a Californian ballot measure, even if the case isn’t appealed further, the impact would only apply to California and not change federal law against the recognition of same-sex marriages under the Defense of Marriage Act.

Regardless, should California become yet another state to recognize same-sex marriages by state law, it would certainly move forward, if not increase, the momentum started with New York’s removal of its own marriage laws in June of last year.

By next year, expect to hear wedding bells in the California air.

Email Bensley at

[email protected] Send general comments to

[email protected] or tweet us at @DBOpinion.

Share on FacebookTweet about this on TwitterEmail this to someoneShare on Google+Share on Reddit

Comments are supposed to create a forum for thoughtful, respectful community discussion. Please be nice. View our full comments policy here.