Prop 8

Lasting Effects of the Supreme Court’s Prop 8 Decision

Stephanie Rugolo is the editor of The Rugolo Report and holds an M.A. from the Maxwell School of Syracuse University.

A strange thing happened in the Supreme Court’s recentHollingsworth v. Perry decision. Even though this case focused on California’s Proposition 8 that banned gay marriage, the court was split, with both liberals and conservatives comprising the majority and dissenting parties. It turns out that the rationale by which the Court’s majority decided the Hollingsworth case led to the justices’ scrambled ideological divisions. The Court’s reason for striking down Prop 8 limits civilians’ ability to legally defend initiatives, a disturbing limit to democratic liberties.

Proposition 8 was a citizens’ initiative passed in 2008 elections. A citizens’ initiative is unlike most laws passed by elected legislatures. Instead, these laws are initiatives of the citizens—that is, they are the result of independent citizens gaining enough signatures to get a proposed law on the ballot.

When gay couples brought a suit against Prop 8 that found the law unconstitutional, the State of California had no intention of appealing the decision. After all, neither the former nor current Californian administrations passed it in the first place, as it was a citizens’ initiative. Consequently, individual proponents of Prop 8 volunteered to appeal the decision in court. That raised questions of standing—whether Prop 8 supporters had a tangible stake in the case and thus a right to appeal. The Ninth Court found they did have standing before finding Prop 8 unconstitutional.

The Constitutional Case for Same-Sex Marriage

As the Supreme Court will hear oral arguments this week on both Hollingsworth v. Perry - the challenge to California’s Proposition 8, which banned gay marriage in the state - and U.S. v. Windsor - the challenge to the 1996 Defense of Marriage Act (DOMA), which recognized marriage at the federal level as between a man and a woman – state and federal laws effecting marriage equality face their first legal confrontation with the Judicial Branch. Herein I make the constitutional case for marriage equality that respects both individual and religious liberties.

Last week, Senator Rand Paul proposed removing federal recognition of marriage - for everyone – telling Bob Costa at the National Review:

The Trouble with the Government in our Bedrooms

One of the most explosive topics in the post-election public discourse has been Proposition 8 on the California state ballot, which passed. The initiative amends the State Constitution of California to read:

Only marriage between a man and a woman is valid or recognized in California.

Supreme Court avoids Proposition 8 ruling

In a ruling issued this morning, the Supreme Court essentially decided to punt on Proposition 8, finding that supporters who had defended the measure had no standing to legal challenge to lower court rulings.

The decision in Hollingsworth v. Perry came with an unususal paring of conservative and liberal members, with Chief Justice John Roberts writing for a majority that included Justices Antonin Scalia, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

In 2008, voters in California passed a constitutional amendment, known as Proposition 8,that defined marriage as one man and one woman. The measure was in response to a state Supreme Court ruling earlier that year that legalized same-sex marriage. In January 2010, a challenge to the constitutionality of Proposition 8 went to trial in federal court. In August 2010, Judge Vaughn Walker struck down the measure, which legalized same-sex marriage in California. The State of California did not defend the Proposition 8 in any of the challenges.

In today’s decision, the Supreme Court did not weigh the merits of same-sex marriage. They did determine, however, those who brought the case forward had no legal standing to do so.

Boaz takes conservatives to task on demagoguery of Vaughn Walker

While many conservatives and statists are decrying the decision as judicial activism, over at Cato @ Liberty, David Boaz points out some facts about Judge Vaughn Walker:

Chuck Donovan of the Heritage Foundation denounces Judge Vaughn Walker for “extreme judicial activism” and “judicial tyranny” in striking down California’s Proposition 8, which barred gay people from marrying. And of course he doesn’t fail to note that Judge Walker sits in … San Francisco. Robert Knight of Coral Ridge Ministries ups the ante: Judge Walker has “contempt for the rule of law” and is part of “the criminalization of not only Christianity but of the foundational values of civilization itself.” National Review allows the head of the National Organization for Marriage to mutter about the judge’s “personal bias.” Blog commenters rail against the “left-wing liberal judge.”

Federal judge strikes down Proposition 8

Yesterday, U.S. District Court Judge Vaughn Walker struck down Proposition 8, a ballot measure approved by voters in California in November 2008, because it violates the Due Process Clause of the Fourteenth Amendment.

The legal challenges are by no means over. Supporters of Proposition 8 will appeal to the Ninth District Court of Appeals, and eventually this will make it to the Supreme Court. Because of this Walker’s ruling does not allow gay marriages to be conducted interim.

As Walker notes in his opinion, “The freedom to marry is recognized as a fundamental right protected by the Due Process Clause.” This right was reaffirmed in Turner v. Safley, in an opinion written by Justice Sandra Day O’Connor, in which she was joined by William Rehnquist and Antonin Scalia.

You can read Judge Walker’s opinion in the case here. Below are some excerpts from the decision (citations have been removed):

Plaintiffs challenge Proposition 8 under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Each challenge is independently meritorious, as Proposition 8 both unconstitutionally burdens the exercise of the fundamental right to marry and creates an irrational classification on the basis of sexual orientation.


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