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Prop. 8 analysis: Is gay-marriage ban a violation of the right to marry or a denial of equal protection for gays?

A federal appeals court on Monday began hearing arguments on the constitutionality of Prop. 8, California's ban on same-sex marriage.

Erwin Chemerinsky, dean of UC Irvine School of Law, said that if the appellate court decides whether opponents of same-sex marriage have legal standing to appeal a judge’s ruling overturning the law, then it must decide whether Prop. 8 is unconstitutional. Here’s the analysis he provided The Times:

Assuming the court finds standing, it will then consider whether Prop. 8 is unconstitutional, as Judge Walker held, as a violation of the right to marry or a denial of equal protection for gays and lesbians. The conventional wisdom is that Judge Reinhardt, a liberal, would vote to affirm Judge Walker, and Judge Smith, a conservative, would vote to reverse and upheld Prop. 8. Therefore, attention in this hour is especially going to be on whether Judge Hawkins’ questions give any sense of how he is likely to rule on the question. Interestingly, the judges are being less active in their questioning so far than they were in the standing discussion, and the only questions in the first several minutes of Mr. Cooper’s defense of Prop. 8 have come from Judge Smith.

As the court considers whether Prop. 8 is unconstitutional, the crucial question is whether California has any legitimate interest in keeping same-sex couples from being able to marry.   Judge Smith posed this question directly and Mr. Cooper said that marriage is about procreation, but the problem with this argument is that gay and lesbian couples can and will have children even without marriage (and heterosexual couples can marry even if they don’t want to or can’t have children.) It is difficult to see why prohibiting marriage equality for gays and lesbians furthers the state’s interest in procreation. 

Judge Hawkins raised a key question that could be decisive for him (and therefore potentially the court).   He raises Romer vs. Evans, a 1996 Supreme Court case which struck down a Colorado initiative that repealed all laws in the state protecting gays and lesbians from discrimination and preventing any new laws protecting gays and lesbians from discrimination. The court found that the Colorado initiative served no legitimate purpose and found that its taking away rights from gays and lesbians violated the Constitution. Judge Hawkins' question focused on whether Prop. 8 does the same thing, by taking away the right to marry which existed for gays and lesbians before Prop. 8. Mr. Cooper stressed that the Colorado initiative repealed all laws protecting gays and lesbians, but Prop. 8 changed just one law. The question is whether Judge Hawkins (and the other judges) perceive that as a meaningful distinction.

Mr. Cooper, in defending Prop. 8, invokes the Supreme Court’s decision in Baker vs. Nelson from 1972.  The Minnesota Supreme Court rejected a constitutional challenge to the denial of marriage to gays and lesbians.  The Supreme Court issued a “summary affirmance” of the Minnesota Supreme Court.  There was no Supreme Court opinion. Mr. Cooper argues that Baker vs. Nelson is controlling here.  But Judge Reinhardt said that this was before Supreme Court decisions protecting gay and lesbian rights.  Also, it did not involve a situation where an initiative amended a state constitution to repeal a right.   Mr. Cooper is giving little emphasis to Baker vs. Nelson because it is very unlikely that the 9th Circuit will decide this case based on a Supreme Court summary affirmance where there was no opinion from almost 40 years ago.


Lawyer argues that marriage exists in society's interest so that men and women can procreate

Must appellate court accept findings of fact by judge who overturned Prop. 8?

Issue of same-sex marriage may end up back in state court

Comments () | Archives (25)


Since when people have the right to decide who marries who?

Just let the silly boys and girls get married so we can move on and stop arguing about it! They aren't hurting anyone!

How about both?

I thought justice was supposed to be blind. If the conservative judge is going to vote against, and the liberal judge is going to vote for, then these judges are just following their own beliefs. Doesn't sound exactly impartial!

Gays currently have the same right to marriage as straight people. It just doesn't allow men to marry men, or women to marry women. Same rights. Has less to do with equality than wanting to create something specual just for them. Which is why this morphed into something relating to "rights of couples", and abandoning the "rights of individuals" analogy. Because as individuals, we all have the same right to marriage. It just doesn't work for them...

What question? The people have spoken, the majority have spoken. OF the people, BY the people, FOR the people. Why do we put things to vote if we don't honor the outcome? Makes you think that government and law makers have a hiden agenda. This is so undemocratic. Did I miss it? Are we now communistic where the people have no voice? The people have spoken on this issue. Let it rest.

Neither, it's a repudiation of a life style.

Marriage as defined by God is a man & women;gay marriage is man's law so I will stick with the original. There is a,"civil union" that is recognized in many ares of the world and many of our states too. That could be used to clear up this controversy.

It's a violation of the 2nd amendment which states that all of the citizens of our country are allowed the same rights as every other citizen and that cannot be taken away by any individual state. Pretty simple.

You may call it a UNION or confirmed Partnership but Not a Marriage.

You may call it a UNION or PARTNERSHIP but not a Marriage.

Why do gays and lesbians have more protective rights than any one else..? That is call discrimination...and any court decision that is based on that class of people having more rights is discriminatory. Sue the courts to remove special interests of gays having more rights than others. And people the definition of marriage is to join two or more items or in this case people to produce something useful...gays and lesbians by their very sexual preferences do not produce...period...that is just this faction trying to rewrite dictionaries around the world...look up the term...marriage. Truth will win.


These judges, and modern attorneys are something else. The Founding Fathers, who gave us our rights, from scripture, executed homosexuals. What a whacked out country.

For me it's simple, either all consenting adults should be allowed to marry or no one should. How does two men or two women ruin the sanctity of marriage if they enter it under the same rules, expectations, etc. as a man/woman? I find it even more upsetting than if one majority religion were to vote and claim that the people that practiced the minority religion could no longer marry. Religion after all is a choice and I do not believe that homosexuality is... I think the only choice they have is whether or not to be true to themselves... I say live and let live!

Ramon. Sure as a gay man I have that right. But let me ask you this, If you were in an arranged marriage and told you had to marry that person (or type) of person under the law, you would be ok with that? I mean come on. A little common sense please?

As a conservative myself...this is getting really stupid and I am tired of the arguing....especially at tax payers expense.

Honestly, people need to stop thinking about themselves and start thinking about our society as WHOLE! what benefits you but hurts the team..shouldn't be allowed. All this gay marriage deal is costing ALL americans tons of money and it needs to STOP!

marriage is kinda of a joke as whole....and is only carried out properly by the FEW!

Some rights cannot be decided by the state. If that were the case then many places in the south still would not acknowledge people of color as equal.
That is why the constitution has something called inalienable rights (or fundamental rights). Remember those? The ones straight people and at one time only white people could enjoy.

Fundamental rights, including the right to practice religion, freedom of speech, due process, and equal protection of the laws, that cannot be transferred to another nor surrendered except by the person possessing them.
It's that simple.

1st you would have to prove there is a God and then we can have a debate.

The state has always required a marriage license and has guidlines to get one, which has been one unrelated adult man and one adult wife . Gays should have equality through expanded domestic partnerships or civil union standings. We don't need to embrace a loving committed man and 12 wives either.

Just because it was put to a vote does not make it legal. It's an issue of constitutionality, not voter opinion. I agree that the court should be impartial, but they won't. Anyone who fights gay marriage is a bigot, plain and simple.

You can not put civil rights to a Vote. The majority should never be allowed to vote away the rights of the minority. That is the basis of our freedom. The rights of the majority are rarely threatened, the rights of the minority are always threatened by basis of their being a minority. The freedom of speech is not intended to protect my right to parrot what most people believe, but rather to protect my right to proclaim what I believe are uncomfortable truths. The free marketplace of ideas requires dissent. Don't tell me what to say, don't tell me what to believe, don't tell me what weapons I can or can not own, don't tell me who to marry. Gay marriage is an issue true conservatives should embrace.

Gays have the right to a marraige that works for them.

Hi Peter,

You write that gay marriage might be good for some but would "hurt the team".

That's entirely untrue. Allowing gay marriage will create more legally and morally committed relationship, build stronger families with the same legal rights as hetero marrieds, create more stable homes for children of gay/lesbian couples (unlike now!), secure and protect rights of inheritance between loving and committed couples, preserve property and equity overall, and generate more businesses for wedding planners, etc. There is ample published evidence for this.

How is any of that "bad for the team"?

And as far as spending whole bunches of money on this court fight being silly, I agree. You straight, religious folks threw the first punch, so we'll give you the privilege of dropping the whole argument first. Then you can all say you're sorry for thousands of years of murder, social repression and cultural stigma and blackmail.

Then we'll just get married like regular people. Which is what we are.


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