Prop. 8 Decision Avoids Issue of Same-Sex Marriage's Constitutionality

By Stephanie Rabiner, Esq. on February 07, 2012 | Last updated on March 21, 2019

Prop. 8 is unconstitutional. But is same-sex marriage a constitutional right? Maybe not.

The 9th Circuit has upheld a lower court ruling, striking down California's same-sex marriage ban on equal protection grounds. But the court focused only on the law's purpose -- not on the constitutional right to same-sex marriage.

The ruling states that Prop. 8 is unconstitutional because it "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California."

Judge Stephen Reinhardt writes that the court has not decided whether same-sex couples have a constitutional right to marry. Answering this question was an unnecessary part of the analysis.

This is because the U.S. Constitution requires, at the very least, a legitimate reason for passing a law that treats a group of persons differently. The court found no such reason.

Same-sex couples in California have all the same rights as opposite-sex couples, the court explains in 128 pages. This is because the state has a domestic partnership law granting such rights. Prop 8 thus had one effect -- stripping same-sex couples of "the right to obtain and use the designation of 'marriage' to describe their relationships."

"Nothing more, nothing less."

Prop 8 was not enacted to promote procreation or 2-parent households, writes Judge Reinhardt. It did not affect religious freedom or education. It only took away the right to be granted marriage licenses -- a right provided by the state constitution.

As per Romer v. Evans, "the Constitution simply does not allow for 'laws of this sort.'"

This will certainly not be the end of Prop. 8, as its supporters will likely appeal. If accepted by the Supreme Court, you can expect the Justices to similarly evade the real question. They, too, don't need to opine on the constitutionality of same-sex marriage to decide if Prop. 8 is unconstitutional.

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