Fridae

Here’s a 42-minute long press conference that followed the announcement: http://www.ustream.tv/embed/recorded/20288259.

On Wednesday, the House of Representatives in Washington State passed a bill legalising same-sex marriage. Having earlier been approved by the state senate, the bill now goes to Governor Chris Gregoire, who has pledged to sign it, making Washington state the seventh in the US (in addition to the District of Columbia) to legalise same-sex marriage. Unless voters opposed to it get enough signatures for a voter initiative in the November 2012 elections, it will likely mean gay marriages in the state by the summer.

California’s Proposition 8 of 2008 was one such voter initiative. Since that was four years ago, with its origins even further back, perhaps a bit of background bears repeating.

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On 12 February 2004, then-San Francisco mayor Gavin Newsom ordered San Francisco officials to permit same-sex marriages. Immediately, this move was challenged in court, and a month later, the California Supreme Court ordered Newsom to respect prevailing interpretation of California laws (banning same-sex marriage) and to stop. New suits were quickly brought challenging those laws on the basis that they violated the California constitution. This would prove a roller-coaster ride through trial and two appeals. 

Plaintiffs won at the trial stage in a Superior Court. On 14 March 2005, Judge Richard Kramer ruled that California statutes limiting marriage to opposite-sex couples were unconstitutional, with the court holding that there was no rational connection between forbidding same-sex marriage and any legitimate state interest, and that the opposite-sex requirements impermissibly discriminated. 

In July 2006, the California Court of Appeal of the First District reversed this ruling. 

Then on 15 May 2008, the California Supreme Court reversed the appeal court’s ruling in a 4-3 decision. Citing the Court’s 1948 decision in Perez v Sharp where the state’s interracial marriage ban was held unconstitutional, the California Supreme Court found that “equal respect and dignity” of marriage is a “basic civil right” that cannot be withheld from same-sex couples, that sexual orientation is a protected class like race and gender, and that any classification or discrimination on the basis of sexual orientation is subject to strict scrutiny under the Equal Protection Clause of state’s constitution. 

This ruling being final, California officials began officiating same-sex marriages state-wide a month later. 

Groups opposed to same-sex marriage quickly collected 1.12 million signatures, far more than the minimum 694,354 needed to put a voter initiative on the ballot for the November 2008 election. This was called Proposition 8 of 2008, which sought to amend the California Constitution by inserting a clause that said “only marriage between a man and a woman is valid or recognized in California.” It passed by 52.2% to 47.8%. The day after polling day, California stopped issuing marriage licences to same sex couples. Previously-officiated marriages continued to be valid. 

A new set of court challenges then commenced, this time through the US federal court system (as distinct from the earlier set of court challenges that went through the California judicial system). The basis for the challenge was the Proposition 8 was unconstitutional because it violated the US Constitution guaranteeing equality. 

After a lengthy trial, Judge Vaughn Walker of the Federal District Court in San Francisco found for the plaintiffs on 4 August 2010, and struck down Proposition 8. However, implementation of his decision was stayed to allow appeals to go through.

The news this week was that a three-judge panel of the US Ninth Circuit Court of Appeals has now affirmed Judge Vaughn’s decision. In its majority opinion, the court wrote that Prop 8 “serves no purpose, and has no effect, other than to lessen the status and dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.” 

What was interesting was that while the court recognised that the broader question of same-sex marriage as an equal right under the US Constitution is an important one and should be decided when called upon, it was not necessary to pronounce on it in this case, wrote the appeal court. A unique feature arising from the history of Prop 8 was enough to invalidate it. 

The appeal court found that the California Supreme Court, in its ruling of May 2008 had ruled that gays and lesbians had an equal right to marriage. Proposition 8 then sought to eliminate a right that existed. “The People may not employ the initiative power to single out a disfavoured group, and strip them, without a legitimate justification, of a right as important as the right to marry. Accordingly, we affirm the judgement of the district court.” 

To stress how prejudicial Prop 8 was, the court noted that “the action of changing something suggests a more deliberate purpose than the inaction of leaving it as it is.” 

The decision relied heavily on a precedent set by the Supreme Court of the United States in Romer v Evans, that said the voters may not strip any group of their existing rights.

However, the qualification “without a legitimate justification” was also important, and at hearing the court had invited proponents of Proposition 8 to produce one. The written decision included a discussion as to why the Court of Appeal found that supporters of Proposition 8 offered no convincing legitimate justification. Absent that, the court was “left with the inevitable inference that the disadvantage imposed [on gays and lesbians by Prop 8] is born of animosity”. 

What happens next? It is likely that supporters of Proposition 8 (also known as “proponents”) will appeal the Circuit Court’s decision to the Supreme Court of the United States. And that’s where the unusual feature of the Circuit Court’s ruling comes into play. Relying heavily on a preceding ruling of the Supreme Court (Romer v Evans) in its judgement, the Circuit Court made it very hard for the Supreme Court to overturn its decision. On the other hand, by fortifying its decision with reference to the unusual history of Proposition 8 (i.e. the argument that it stripped away a right that the state’s Supreme Court had previously ruled as existing), it also made it harder for any decision of the US Supreme Court to apply outside California.

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Anti-gay people may call this “judicial activism”, where unelected judges impose their elitist views on ordinary people. They should check their facts before saying so. A latest poll of Americans has these results: 70% of American aged 18 to 34 support marriage for same-sex couples. 53% of those aged 35 -54 also support it. It is the older folks who are different. Only 39% of those aged 55 and older support same-sex marriage.

Important as the role of judges is, it is demography that is the steamroller.

Alex Au has been a gay activist and social commentator for over 15 years and is the co-founder of People Like Us, Singapore. Alex is the author of the well-known Yawning Bread website.