Here’s to the 9th Circuit

 Prop 8 — and the narrow approach ahead

As an attorney and half of one of the 18,000 same-sex couples who married in 2008 in California, I was delighted that the 9th Circuit Court of Appeals made history yesterday by ruling that Prop 8 is an unconstitutional violation of the Equal Protection Clause. The 9th Circuit ruled that even though domestic partners have all the rights and obligations of opposite-sex married couples, that’s not enough. The name, alone, is what matters. Consider the following excerpt:

“We need consider only the many ways in which we encounter the word ‘marriage’ in our daily lives and understand it … to convey a sense of significance. We are regularly given forms to complete that ask us whether we are “single” or “married.” Newspapers run announcements of births, deaths and marriages. We are excited to make a life with someone and ask, “Will you marry me?” (Certainly it would not have the same effect to see “Will you enter into a registered domestic partnership with me?) …”Marriage” … is the principal manner in which the State attaches respect and dignity to the highest form of a committed relationship and to the individuals who have entered into it.”

In its opinion, the 9th Circuit was very, very careful. It relied on an already-decided U.S. Supreme Court case that ruled unconstitutional an amendment to the Colorado constitution that disallowed cities from passing laws forbidding discrimination against gays and lesbians in employment, housing, etc. Once a group has a right, the 9th Circuit said, that right cannot be withdrawn and still survive constitutional scrutiny. For another day is the decision as to whether same-sex couples MUST be granted the right to marry in states around the country. This narrow approach is the key to the decision — and is the reason I believe that the U.S. Supreme Court will find it very hard to overturn its decision (that is, if the case reaches that Court and the Court takes it).

The proponents have 15 days to ask for a review of this decision by the full 9th Circuit and/or 90 days to appeal to the U.S. Supreme Court. If the Court doesn’t take this case or if it affirms, same-sex couples will marry in California. So yesterday was a very exciting day, and one that will go down in history. The Supreme Court’s hand may be forced because the 9th Circuit relied on an already-decided high court case. In my opinion, the 9th Circuit did a damn good job!

Editor’s Note: Brenda Feigen is Principal in her firm, Feigen Law Group,  where she practices anti-discrimination and civil rights, family, environmental, and intellectual property law. A graduate of Harvard Law School, she co-founded Ms. Magazine with Gloria Steinem and directed with (now Justice) Ruth Bader Ginsburg the Women’s Rights Project of the ACLU. Her memoir, Not One of the Boys: Living Life as a Feminist, was published by Alfred A. Knopf in 2000. She moved from Manhattan to Los Angeles to produce her first feature film and currently lives there with Joanne Parrent, her longtime partner and spouse.

5 comments so far.

  1. avatar central coast cabin home says:

    I am sure they will appeal to the US Supreme C
    ourt which is probably good. Let’s hope they do a damn good job as well and put this to rest once and for all! It was indeed a happy day.

  2. avatar J Holmes says:

    A very good day indeed!

  3. I’m not gay…but have had a lot of gay friends over the years, esp living in San Francisco, and think it is BEYOND ridiculous. I think being gay is a third sex. It’s been true since time began and will always be true so the GOP should just grow-up!! Sheesh already. Can they possibly waste more time and money and energy on NON issues!! Pathetic!! ANY of my gay friends are BETTER…MUCH BETTER than any of the GOP in Congress. Although I did really Chuck Hagel before he resigned.

  4. avatar Rienne says:

    This is a fantastic win for same sex couples every where. I only wish that every state would embrace the same respect for gays. I have two, very wonderful brothers-in-law who more than deserve to be able to be married. They have been together longer than my husband and I, they have bought a beautiful house together. They have raised David’s three children from a previous marriage and those children have to be the most well behaved, intelligent, active in the community and school and just hands down the best raised children I have ever met. Not only that, they have adopted a beautiful baby girl who was an addicted baby when she was born. That beautiful little girl is thriving in their care. And they are so much in love! I sometimes even envy their relationship. Although my state doesnt recognize domestic partnerships or gay marriage, I still introduce then as, ” This is my brother-in-law, Robert and his husband , David.” How is it the goverments right to say who can and cannot get married? In this day in age, there is much more that they need to be worried about rather than trying to stop a group of people from living their lives with love and happiness that they should be entitled to.