Yesterday, in a decision that is likely to eventually be felt here, a three-judge panel from the Ninth Circuit Court of Appeals found California’s ban on same-sex marriages, unconstitutional.
“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,” Judge Steven Roy Reinhard wrote in the 2-1 decision. “The Constitution simply does not allow for ‘laws of this sort.’ “
The appellate panel also ruled that Prop 8’s backers could stand in for the government of California in defending the law, virtually guaranteeing the case will proceed to the U.S. Supreme Court, which is unlikely to hear it until well after voters here decide whether to amend Minnesota’s constitution to outlaw same-sex marriage.
How could the California case, the Minnesota ballot question and legislative efforts to ban and legalize gay marriage in other states intersect? MinnPost put this and a series of other questions to Mary Pat Byrn, a professor at William Mitchell College of Law who teaches and writes on constitutional law and issues involving sexual orientation.
For starters, if voters reject the current campaign to amend the state constitution, same-sex marriage will remain illegal in Minnesota, which has a 15-year-old state version of the Defense of Marriage Act. So why amend the constitution?
Byrn cites three possibilities. Amendment proponents argue that the measure is needed to ensure that “activist judges” don’t legislate from the bench.
Another possibility, often raised by amendment opponents: To rile up an electorate — particularly one that’s lukewarm on, say, Mitt Romney — in a tough election year.
A third: “To constitutionalize the majority view of today,” said Byrn. Right now, polls give a slight edge to the amendment’s backers, but show widespread acceptance of gay rights among younger generations. Acting now to change the constitution ties those younger hands going forward.
If the amendment is approved, there are three routes for undoing it. The first would be for lawmakers in both legislative chambers to pass another bill again putting the issue before the voters, who could pass a second amendment repealing the first. A good example: The institution and repeal of Prohibition.
Or the Minnesota Supreme Court could rule that the amendment violates the U.S. Constitution.
The high court
The third path would be if the U.S. Supreme Court ruled that same-sex marriage bans were unconstitutional, which it could do in response to Prop 8. However, the high court could also do what the Ninth Circuit panel did Tuesday and rule only on the constitutionality of Prop 8 per se.
Although voters generally have the right to create laws, the appeals court ruled, under the U.S. Constitution’s equal protection clause if a law will result in differential treatment of a particular group, which most laws do, there must be a good reason.
In 1996 in Romer v. Evans, the U.S. Supreme Court struck down an amendment to the Colorado constitution preventing any local government in the state from recognizing gays and lesbians as a protected class, ruling that the ban did not pass this “rational basis” test.
Prop 8’s backers had argued that same-sex marriage threatened heterosexual marriage, an assertion the court found fallacious, and that gays and lesbians are dangerous to children, which it deemed prejudice.
“Although 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,” Judge Reinhardt wrote. “There was no such reason that Proposition 8 could have been enacted.”
Only one reason left
The only reason for the amendment, then, was animus toward a particular group: “All that Proposition 8 accomplished was to take away from same sex-couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage.’ “
Nor did the appeals court agree with the pro-amendment forces that Vaughan Walker, the California judge who presided over the Prop 8 case at the trial court level, should have recused himself because he is gay.
(Fun fact for trivia hounds: Yesterday’s victory was secured by a team of lawyers headed by Theodore Olson, a Republican, and David Boies, a Democrat, who appeared in U.S. District Court in St. Paul last summer on opposite sides in the NFL lockout as well as in the 2000 Bush v. Gore case.)
The federal appeals court did not opine on whether gays and lesbians have an inalienable right to marry. Unlike Minnesotans, before their constitution was amended, Californians had same-sex marriage rights — rights voters had no legitimate reason to strip them of.
“That is different, and what is unprecedented,” said Byrn. “There just haven’t been times when we take rights away from people.”
Bonus reading material: [PDF] Minnesota’s constitution turns out to be surprisingly plastic, having been amended, and amended, and revised and amended and revised again.
What does it look like today, after all that churn? We present the relevant chapter [PDF] from the state legislative “Blue Book,” which also reviews the federal founding documents. If you want to skip ahead to the state’s founding, Minnesota’s constitution begins on page 56.