Thomas More Society Expects SCOTUS to Uphold Proposition 8

CHICAGO, Feb. 8, 2012 /Christian Newswire/ — In a “split decision” (2-1), a three-Judge panel of the Ninth Circuit U.S. Court of Appeals sitting at San Francisco yesterday struck down Proposition 8, the California initiative adopted on November 4, 2008, which overturned a decision of the California Supreme Court (In re Marriage Cases) requiring the State of California to recognize same-sex marriages.

Under Proposition 8, marriage is a relationship that may exist only between a man and a woman. Proposition 8 did not deprive same-sex couples of any of the rights and privileges of marriage they are entitled to under California’s Domestic Partner Act.

Judge Stephen Reinhardt, in an opinion joined by Judge Michael Hawkins, crafted what he characterized as a “narrow” opinion, focusing on whether, once California had allowed same-sex marriages as a result of a state supreme court decision in the spring of 2008, it could then “withdraw” the right of same-sex couples to enter into relationship designated as “marriage” by virtue of a state constitutional initiative (Proposition 8) approved by the voters on November 4, 2008. Judge Reinhardt’s opinion declined to decide whether same-sex couples have a fundamental due process liberty interest in marrying, whether classifications based upon sexual orientation are subject to a heightened standard of review (like those based on race or gender) for purposes of equal protection analysis, whether the people of California could have amended the state constitution to ban same-sex marriages before the state supreme court ruled on the question, or whether they could have reserved both marriage and the rights and privileges of marriage to opposite-sex couples. Judge Reinhardt’s opinion purported to find a constitutionally relevant distinction between not extending rights to persons who had not previously enjoyed those rights and withdrawing rights from those who had, a distinction that is of questionable constitutional relevance.

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In an opinion that seems clearly aimed at attracting the vote of Justice Anthony Kennedy, if (as everyone expects) this case reaches the Supreme Court, Judge Reinhardt relied almost exclusively upon Justice Kennedy’s opinion for the Court in Romer v. Evans (1996), in which the Supreme Court struck down Colorado’s Amendment 2. Colorado’s Amendment 2, however, which in very broad terms swept away existing special legislation for gays and lesbians and barred both the State of Colorado and its political subdivisions from enacting such legislation in the future, bears little or no relationship to California’s Proposition 8, which focuses upon a single, narrow concept — whether the People of the State of California may define marriage as a relationship that may exist only between a man and a woman. Indeed, Colorado’s Amendment 2, by its own terms, did not even prohibit same-sex marriage (that prohibition was adopted by the voters of Colorado many years later). Several state and federal courts, in reviewing the constitutionality of same-sex marriage bans, have recognized the difference between such bans and the initiative struck down in Romer v. Evans and have held that Romer simply has no application to such measures.

The proponents of Proposition 8 advanced multiple reasons in support of the initiative, that reserving marriage to opposite-sex couples is reasonably related to the State’s legitimate interests in responsible procreation; in providing the benefits of parenting by both a mother and a father; and in proceeding cautiously in changing a basic social institution. Without commenting upon the legitimacy of these interests, Judge Reinhardt found that Proposition 8 did not promote such interests. He also dismissed any interest that Californians may have had in restoring the institution of marriage to what it had meant before the California Supreme Court decided that the State had to recognize same-sex marriages. Tradition alone, in Judge Reinhardt’s view, could not support the removal of a new right from same-sex couples. Judge Reinhardt concluded that, once all of the stated and possible justifications for the initiative were removed, Proposition 8 could be explained only by a “disapproval” by the voters of gays and lesbians, an explanation that cannot be justified in constitutional terms.

Judge N.S. Smith dissented, questioning Judge Reinhardt’s reliance on Romer v. Evans and taking issue with his treatment of the state interests at stake and whether Proposition 8 advances those interests.

Woodrow Wilcox


The Thomas More Society represented the Family Research Council in defending Proposition 8 in the Ninth Circuit and expects that Proposition 8 ultimately will be upheld by the Supreme Court.

About the Thomas More Society: Founded in 1997, the Thomas More Society is a national public interest law firm that exists to restore respect for life in law. Based in Chicago, the Thomas More Society defends the sanctity of human life, the family and religious liberty in courtrooms across the country. The Society is a nonprofit organization wholly supported by private donations. For more information or to support the work of the Thomas More Society, please visit

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