Balkinization  

Thursday, February 09, 2012

Proposition 8's Continuing Constitutionality?

Jason Mazzone

By finding Proposition 8 to violate the Equal Protection Clause solely on the ground that it withdrew the right of marriage that gays and lesbians previously possessed in California (as a result the earlier state supreme court's decision), Perry v. Brown produces a curious result. It appears to leave Proposition 8 partially intact.

The district court had held that Proposition 8 violated due process by denying same-sex couples the right to marriage and it violated equal protection because there was no rational basis for distinguishing same-sex couples from opposite-sex couples for the purpose of marriage licenses. The remedy the district court imposed followed these holdings: the state of California was prohibited from enforcing the change Proposition 8 made to the state constitution and thereby prohibited from denying marriage licenses to same-sex couples.

Because the circuit court's decision was based on the injury caused by the withdrawal of a right, Proposition 8 arguably remains constitutional as to gays and lesbians in California who did not previously possess the right to marry. For example, gays and lesbians who came of age after Proposition 8 was adopted did not previously have a right to marry in the state. So how do they benefit from the circuit court's decision? (Perhaps the answer is that they assumed that, like their heterosexual peers, that once they reached adulthood they would be able to marry.) And what about gays and lesbians not born prior to the passage of Proposition 8? It's hard to see how how they fall within the class of individuals the circuit court found to have had a right withdrawn; it would thus appear that Proposition 8 is still in effect as to them and requires the state of California to deny them a marriage license when they seek it in the future. (Perhaps that outcome will produce a new round of equal protection litigation against the state for allowing some same-sex marriages to go forward but prohibiting others; the state can offer up as its rational reason for its distinction the mandate of Perry v. Brown.)

All of this seems bizarre. But it's what you get when you construct a new equal protection doctrine of rights-withdrawal.

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