Prop 8 Struck Down, But Not Much More

(By Andrew MacKie-Mason)

By now you've almost certainly heard that a 9th Circuit panel affirmed (2-1) the district court opinion striking down Prop 8, California's virulently anti-gay ballot initiative from 2008. Here's a summary and here's the full opinion, both uploaded to Google Docs because apparently the federal government's websites can't deal with the fact that people might want to actually look at what's on them.

The opinion is certainly good news, as it'll give people in California a more equal right to marry. The panel also gave a unanimous smack-down to the absurd and insulting right-wing idea that gay judges with partners cannot address the marriage issue impartially. But the severe limitations of the opinion are also important to note. The opinion applies almost solely to the facts surrounding Prop 8, an amendment to reclassify marriage between same-sex partners differently from opposite-sex marriage, while leaving the previously guaranteed benefits of same-sex marriage in place.

The logic of the opinion rests firmly on the fact that none of the oft-posited justifications for a ban on marriage equality were even possible to raise here, because Prop 8 removed no rights but symbolic ones.

Of course, that doesn't mean that the symbolic rights aren't important. When a state lets a man and a woman get married, but two women can only get a "civil union," the state is legitimizing one relationship over the other. That's a non-trivial harm, and it's important to fight it by either letting same-sex couples get married or offering only civil unions to all couples. The CA9 opinion rightly recognizes this.

But what the logic does mean is that a proposition that removed more rights may have fared better under the court's analysis. We can't know for sure, because the court specifically avoided the broader issue of whether same-sex couples have a fundamental right to marry, full stop. But if Prop 8 had, in addition to redefining marriage, forbidden adoption by same-sex couples, at least one hurdle would have been overcome in the Ninth Circuit, and it may well have been found constitutional.

This opinion is definitely a victory for same-sex couples in California. But it may well end up being the beginning of a defeat for the broader equality movement. The stakes of the litigation have been shifted significantly in the anti-equality group's favor: a ruling for their side at the Supreme Court (or the full Ninth Circuit, though that's less likely) could have significant repurcussions for equality around the country. A ruling in favor of equality from the Supreme Court, however, will likely be as limited as the Ninth Circuit opinion, with few effects in the rest of the country.

So, celebrate for a day. But this is hardly the end, and it's not the best place we could be in.