Is Proposition 8 Unconstitutional?

All sides to the Proposition 8 related appeals to the California Supreme Court are urging the Court to quickly dispose of the issue of whether or not the proponents of Proposition 8 chose the wrong amendment process vehicle available under the California Constitution. As I have said before, I suspect that they knew they could never get a super majority in the legislature and, therefore, utilized the initiative route. Some are alleging that the California Supreme Court has already shown its hand in its May 15, 2008 ruling in the In re Marriage Cases where on page 6 the Court stated in part:
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". . . . upon review of the numerous California decisions that have examined the underlying bases and significance of the constitutional right to marry (and that illuminate why this right has been recognized as one of the basic, inalienable civil rights guaranteed to an individual by the California Constitution), we conclude that, under this state’s Constitution, the constitutionally based right to marry properly must be understood to encompass the core set of basic substantive legal rights and attributes traditionally associated with marriage that are so integral to an individual’s liberty and personal autonomy that they may not be eliminated or abrogated by the Legislature or by the electorate through the statutory initiative process. These core substantive rights include, most fundamentally, the opportunity of an individual to establish — with the person with whom the individual has chosen to share his or her life — an officially recognized and protected family possessing mutual rights and responsibilities . . ."

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Thus, if the Court follows its own prior ruling, we already know what the correct result should be. A larger question is whether or not Proposition 8 can stand up to equal protection clause scrutiny under the U.S. Constitution. A column in today's Los Angeles Times suggests that the answer to that question is "No." I agree with the analysis and believe that under the U.S. Supreme Court ruling in Romer vs. Evans (1996), which struck down an anti-gay amendment to the Colorado Constitution, Proposition 8 must fail, especially in the wake of Lawrence v. Texas (2003). With all due respect, I think Andrew Sullivan's comments that Proposition 8 must stand is - I'm sorry Andrew - wrong. Here are some column highlights:

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In 1992, by a 53%-47% split, Coloradans passed an amendment to their state Constitution that repealed laws in Aspen, Boulder and Denver that prohibited discrimination against gays. The amendment barred the state and its political subdivisions from adopting or enforcing any law "whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships" are the basis of a claim of discrimination. Does this sound familiar?

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As the proponents of same-sex marriage rights determine the proper response to Proposition 8, it is illuminating to compare Colorado's rejection of "gay rights" with California's repudiation of "gay marriage." . . . Following the enactment of Colorado's Amendment 2, its opponents filed suit claiming that it unlawfully singled out gays and lesbians as a class to deny them rights that other citizens not only possess but take for granted.

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To the surprise of many, the U.S. Supreme Court agreed. Writing for a 6-3 majority in Romer vs. Evans (1996), Justice Anthony M. Kennedy explained that it "is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance." Laws such as Amendment 2 "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected,"Kennedy wrote, adding a reference to another 1973 ruling. "If the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest."

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Proposition 8 suffers these same constitutional flaws. It provides that gays and lesbians -- alone among consenting adult couples -- shall not have the opportunity to enjoy the rights, privileges and social approbation conferred by the status of lawful marriage. And despite their insistence that the initiative was "not an attack on the gay lifestyle," its proponents were remarkably candid about their disapproval of homosexual families. . . . . In other words, the reasons for denying gay and lesbian couples the right to marry that served as the "factual" basis for Proposition 8 are but pretexts for discrimination.

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[T]he Colorado and California initiatives are alike in their essence. Each is, to quote Kennedy, "a classification of persons undertaken for its own sake, something the equal protection clause does not permit." Proposition 8 was explicitly designed to relegate hundreds of thousands of Californians to an inferior legal and social status.

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Many gay-rights activists are wary of the current Supreme Court, but five of the justices who formed the majority in Romer vs. Evans remain on the bench. . . . this 12-year-old precedent from a conservative high court could be the key to reaffirming that fundamental civil rights must be available to all citizens, regardless of race, sexual orientation or other intrinsic human qualities.