The Legacy of Prop 8

By Alex Kaufman


February 7, 2012 marked victory after a long and arduous battle that started on Election Day 2008. Right as America ushered in President Obama, Californians voted on Proposition 8, a proposition that would eliminate the rights of same sex couples to marry – and it passed, roughly 52 percent in favor and 48 percent opposing. The passage of Prop 8 was met with protest, vigils, a slew of YouTube videos, and general discontent. The bill was immediately brought to the California Supreme Court, where the Californian justices defended the bill.

On August 4, 2010 however, federal judge, Chief Judge Walker overturned that judgment stating that it was an infringement upon the Due Process and Equal Protection clauses found in the 14 amendment to the Constitution. A 3-judge panel of the Ninth Circuit of the United States Court of Appeals voted to uphold Walker’s ruling 2-1. Proposition 8 was finally deemed unconstitutional on February 7, 2012.  Judge Stephen Reinhardt, who wrote the majority opinion for this trial, distinguished the majority opinion from Judge Vaughn’s by narrowing in on what it was that made Prop 8 unconstitutional, as opposed to ruling on why same sex couples have a constitutional right to marry. “Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry,” depriving same-sex couples “…of an existing right without legitimate reason.” The Ninth Circuit’s ruling also stated, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California.”

The ruling was written in terms that limited the judgment to California. The people of California were withholding a right from their fellow Californians, in which case the United States Supreme Court would not have jurisdiction to rule over the case and the Ninth Circuit would indeed have the final say. Just when it seemed that Californian same-sex couples and their advocates could breath for just a moment, Prop 8 supporters filed a request to have the case tried before the entire Ninth Circuit of judges, or what is known as an en banc review. This would require first that the majority of the 25 judges of the circuit to vote on whether the case should be reheard in front of another panel of 11 Ninth Circuit judges. Many of judges who sit on the circuit are conservative appointees by President Bush, and if the measure is voted down, this would leave the case at risk of being appealed to the United States Supreme Court.

This ruling comes on the back of several other states’ same-sex couples fighting for their constitutional right to marry as well, and in Washington they succeeded. On February 15, 2012, Governor Chris Gregoire signed a bill that would legalize same-sex marriage in the State of Washington, giving gay rights advocates a major victory. As of Feb. 15 Washington was the 7th US state and the District of Columbia to have legalized same-sex marriage on the books. It seemed like there would be an eighth state in New Jersey, whose legislature had passed the bill. That hope was crushed by Governor Chris Christie who vetoed the bill upon arrival at his desk. However, the United States is yet again prepared for another state to be the 8th – Maryland. On Monday Feb. 27, Governor O’Malley promised to sign the same-sex measure as soon as it comes to his desk this Thursday. The Washington Post reported the Governor saying, “I’m prepared to sign it because I believe that the way forward among people of many different faiths is always in the direction of greater respect for the equal rights for all.” Governor O’Malley continued to say that he believes that a good leader “always [tries] to be a force for building consensus that moves us forward.”

Can same-sex couples across the nation hope that their state is next? With four states legislating on gay marriage bills within the same month, it just seems like the rest of the nation is lining up to bring the issue to their state. That’s not the case, however, according to Aaron Hartman, a graduate assistant at the Tufts LGBT Center. When asked if there were a continuing trend of states voting on gay marriage, Hartman said, “There are spikes of it. There’s a momentum like dominoes, and it’s nice that were getting some groundswell. But it will be a while till we see the next spree.”

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