February 7, 2012

Proposition Hate: Why Proposition 8 Was Overturned

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Tuesday gave supporters of same-sex marriage reason to celebrate: A group of federal appeals court judges overturned Proposition 8. The proposition, which was voted into law four years ago by 52 percent of California voters, amended the California Constitution to only recognize heterosexual marriages. California, formerly a reliable beacon of the LGBTQ rights movement, is now a battleground of social conservatives, liberal activists and warring religious organizations.

The proposition’s story has followed a long and often confusing road. Almost immediately after it passed on the ballot in 2008, a case was filed to challenge it in San Francisco. That case, Perry v. Schwarzenegger, is the one on which the federal appeals court issued its ruling.

Several steps interrupted its progress to this point, however. The most notable was in 2010, the first time the case was in court, when U.S. District Chief Judge Vaughn R. Walker overturned the proposition. He ultimately issued a stay preventing same-sex marriages, however, until proponents of Proposition 8 could file an appeal.

Judge Walker’s ruling was extremely far-reaching. He ruled that barring same-sex couples from marrying was a violation of both the Equal Protection and due process clauses of the Constitution.  This sweeping, emphatic assertion of Constitutional principles set the stage for the fight that ensued.

The proposition’s proponents and opponents were well prepared for what was perceived as an inevitable judicial appeal following Judge Walker’s ruling. Each side has raised nearly $50 million for the fight, rendering it among the most expensive political battles ever.

Opponents were unsurprised that both the district and the circuit courts overturned the proposition given their liberal reputations. After Judge Walker issued his ruling in 2010, proposition supporters, including notable conservative Christian organization the Family Research Council, petitioned the federal appeals court to invalidate Judge Walker’s decision on the grounds he had a conflict of interest as a gay man.

This, however, belies a serious problem with respect for the courts and the politicization of the judicial system. Judge Walker was nominated by President Reagan and is known as a conservative, and to assume he avoided recusing himself due to political motivations is extremely disrespectful.

It seems unlikely to me, however, that there would have been an issue if a straight judge had ruled in favor of the proposition. Would opponents leap to question the judge’s ruling simply because he or she was not gay or lesbian? In many cases it would be appropriate to consider a judge’s background, and recusal from a case is always an option. But in this case, to bring Judge Walker’s sexuality before the appeals court is a blatant example of the unequal treatment that the proposition consistently precipitates.

The disparate treatment of same-sex couples that followed the passage of Proposition 8 was indeed the focal point of Tuesday’s ruling. The judges writing the panel’s majority opinion stated clearly that they did not intend to decide whether or not this was an issue of Constitutional rights. Instead, they based their ruling on how Proposition 8 affected the California LGBTQ community. Concluding that gay and lesbian couples overall were unequally treated as a result of the proposition, the panel ultimately cited violation of the Equal Protection clause of the Constitution as the proposition’s undoing.

The unequal treatment of same-sex couples was also part of the court’s justification for overruling a majority vote by the people of California. The appeals court explained its interference in this case, with Judge Stephen Reinhardt writing, “the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different people differently.” In this case, he argued, no legitimate reason existed, just the disparate treatment of same-sex couples.

Some are disappointed by the narrow ruling, fearing that it doesn’t have enough teeth to help overturn Proposition 8 in the long term. It is more likely, however, that the new decision provides material for the liberal cause.

In keeping the decision more limited, the judges of the Ninth Circuit gave the gay rights movement a gift: They have laid out a basic argument that outlines practical issues of limiting marriage to heterosexual couples. The disparate status that results from such policies reverberates through most practical issues, from taxes to enrolling a child in school. The plain truth of inequal treatment is even harder to fight down than more philosophical arguments.

Maggie Henry is a sophomore in the College of Arts and Sciences. She may be reached at mhenry@cornellsun.com. Get Over Yourself appears alternate Wednesdays this semester.

Original Author: Maggie Henry

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