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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?

December 6, 2010 | 12:16 pm

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   He raises Romer vs. Evans, a 1996 Supreme Court case which struck down a Colorado initiative that repealed all laws in the state protecting gays and lesbians from discrimination and preventing any new laws protecting gays and lesbians from discrimination.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

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