April 2012 Bar Bulletin
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April 2012 Bar Bulletin

The Law Behind The News

Whither Same-Sex Marriage in Washington after Prop. 8 Ruling?

By Gene Barton


One week before Gov. Chris Gregoire signed Washington's same-sex marriage bill into law on February 13, a panel of the Ninth Circuit Court of Appeals struck down California's anti-gay marriage law, Proposition 8, as unconstitutional under the Fourteenth Amendment. If the decision stands, it is an omen that challenges to Washington's law - already in the works - likely will not be successful.

The decision in Perry v. Brown1 hinged on a distinction between first-generation laws that impose barriers to same-sex marriage and second-generation laws that seek to repeal existing laws that allow same-sex marriage. Because Proposition 8 had effectively overturned the California Supreme Court's decision in In re Marriage Cases,2 which in turn had struck down Proposition 22,3 the Ninth Circuit panel found Proposition 8 to be an unconstitutional deprivation of equal protection guaranteed under the Fourteenth Amendment to the U.S. Constitution because it removed a right that In re Marriage Cases had created.

[A]ll parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right-the right to obtain and use the designation of 'marriage' to describe their relationships. Nothing more, nothing less....

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of 'marriage,' which symbolizes state legitimization and societal recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."4

One of the decision's major underpinnings was the ruling in In re Marriage Cases in which the California Supreme Court invalidated Proposition 22 on due process and equal protection grounds, stating: "The right to marry is an integral component of an individual's interest in personal autonomy protected by the privacy provision ... and of the liberty interest protected by the due process clause" of the California constitution.5 The court rejected the notion that historical barriers to same-sex marriage justified a constitutional interpretation that the right to marry protects "only one's ability to enter into an officially recognized family relationship with a person of the opposite sex.... Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights."6

Similarly, "the historic and well-established" practice of reserving legal marriage for opposite-sex couples did not withstand scrutiny on equal protection grounds. In this respect, the California court had also rejected arguments that reserving marriage for opposite-sex couples had a positive effect on child rearing, particularly given the fact that California law allows same-sex couples to adopt and raise children and draws "no distinction between married couples and domestic partners with regard to the legal rights and responsibilities relating to children raised within each of these family relationships."7 At the same time, providing same-sex couples something short of marriage, i.e., domestic partnership, caused "a real and appreciable harm" and constituted "an official statement that the family relationship of opposite-sex couples is not of comparable stature or equal dignity to the family relationship of opposite-sex couples."8

Rather than seek certiorari, opponents of same-sex marriage put Proposition 8 on the ballot. Unlike Proposition 22, Proposition 8 was an initiative constitutional amendment, which - once passed by California voters on Nov. 4, 2008, by a 52.3% majority - inserted the following provision into the California constitution immediately (and conspicuously) after the due process and equal protection clauses: "Only marriage between a man and a woman is valid or recognized in California."9

Opponents brought an original action for a writ of mandate in the California Supreme Court on grounds that Proposition 8 exceeded the scope of the initiative power because it revised, rather than amended, the constitution. Given the limited scope of review, the court - in an extensive opinion - upheld Proposition 8 as a valid initiative.10

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