Proposition 8 ruling: A limited win for equality

The Ninth Circuit Court of Appeals decision upholding a lower court's ruling that California's Proposition 8, which outlawed gay marriage, was unconstitutional is surely a good outcome and an advance for equality. Already backers of same-sex marriage in Maryland, including Gov.Martin O'Malley, are expressing optimism that it will provide a boost to their efforts here. But the 2-1 opinion is so narrowly drawn that, even if it is upheld by theU.S. Supreme Court in an inevitable appeal, it may have little bearing on the situation in Maryland and elsewhere.

The judges in California made what sounds like a sweeping statement in the opening lines of their opinion: "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." The Constitution requires that state and local laws have a legitimate basis for treating different classes of people differently, the judges wrote, but "there was no such reason that Proposition 8 could have been enacted."

But it is important to note the context in which the judges made those statements. Because California had already granted same-sex couples the same rights as opposite-sex couples (via a domestic partnership law) and because California courts had recognized gay marriage as protected under the state constitution, the effect of Proposition 8 was merely to forbid them from having their relationships officially designated as "marriages." Consequently, the judges write, Proposition 8 had no effect on any of the purported justifications of its proponents: the raising of children, religious freedom or the teaching of content related to homosexuality in the schools.

The official designation of "marriage" is no small thing, the judges write. It "symbolizes state recognition and societal recognition of their committed relationships." But because the decision focuses on the specific context of how that word is applied in the context of California law, it sidesteps the broader question of whether gay marriage can ever be prohibited under the Constitution.

That may well increase the chances that this decision will be upheld by a broader panel of appeals judges and, eventually, by theU.S. Supreme Court. But it also means any eventual decision would likely fall short of what advocates want: an unequivocal statement that the equal protection and due process clauses of the Constitution render any law prohibiting same-sex marriage invalid. The plaintiffs in the case against Proposition 8 made a powerful argument for such a conclusion, and the defendants' case was laughably weak. Claiming, as Proposition 8 supporters did, that the state must endorse only opposite-sex marriage because of its interest in procreation is an argument against divorce or out-of-wedlock birth, or perhaps for a requirement that all married couples have children. Stripped of religious doctrine and tradition as justifications, it became clear that discrimination against same-sex couples can have no basis in law.

All we can hope for out of this case now is for the courts to recognize the right of same-sex couples in California to marry, surely a good thing but little help to families here in Maryland. The state does not have a domestic partnership law equivalent to California's, and Maryland's highest court ruled several years ago that the existing ban on same-sex marriage was legal under the state constitution. That means the operative logic at work in the federal appeals court's decision would have no bearing here. No matter what the Supreme Court does, advocates will have to keep at the difficult work of securing votes in favor of marriage equality in the legislature.

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