The Ninth Circuit Court of Appeals announced its decision today on the controversial Proposition 8 case, Perry v. Schwarzenegger, regarding the constitutionality of the proposition’s ban on same sex marriage in California:

“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses, and thus to 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.” Romer v. Evans, 517 U.S. 620, 633 (1966).” (page 5 of the opinion)

Here’s what I greatly respect about the opinion. Rather than answering the broader question about the constitutionality of banning gay marriage outright, in other words across the country, the court explicitly narrows its decision to the issue at hand. Here, same sex couples had all the same protections as opposite sex couples, in fact gay marriage was legal in California until Proposition 8 was passed. The effect, thus was that Proposition 8 took the right away from same sex couples.

I respect the way the decision was construed because the court did not take it upon itself to engage in what some might consider judicial activism, that is expanding rights not within the narrow corners of the case at hand, usually to the disdain of those not ordinarily subject to the opinion’s reach. When decisions are handed down in this manner, the fallout is usually great, see e.g. Roe v. Wade.

This, in addition to the fact that the court could find no legitimate interest in order to take the right away, since equal rights were in place prior to the enactment, made the proposition one of the type the Due Process and Equal Protection Clauses and all of the related case law were designed to protect against.

What is truly remarkable about the opinion’s language is that the court did not have to implement the heightened level of constitutional protection, commonly referred to as “strict scrutiny,” or even “intermediate scrutiny,” which has been alluded to if not directly invoked in same-sex rights cases. The language, reminiscent of the rational basis test, stems directly from the fact that the same sex right to marriage was already granted, thus stripping away the potential arguments against gay marriage in general, such as procreation, etc. “Proposition 8 violated the Equal Protection Clause because there is no rational basis for limiting the designation of ‘marriage’ to opposite sex couples.” (citing the district court opinion, p. 19)

Less central to the case, the court also affirmed the right of the Prop 8 opponents to defend the lawsuit, specifically citing the election code and the State Supreme Court’s decision on the matter, and denied that the district court Judge Walker’s opinion was tainted by the fact that he was in a committed same sex relationship.

Presumably due to an over abundance of people attempting to access the opinion, here is a link to an external source. I will update with a link to the court’s official page when the internet calms down a bit. Here is a link to the official opinion.