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By Jeff Ostrich, MPSA ’14

In 2008, California voters approved Proposition 8, which amended the state constitution to say “Only marriage between a man and a woman is valid or recognized in California.” Applying the U.S. Constitution through the lens of relevant court precedent, this article will show that the Proposition 8 amendment violates both the Due Process and Equal Protection clauses of the 14th Amendment.

Prop. 8 Must Pass the Strict Scrutiny Test

The U.S. Supreme Court generally considers offenses against the Fourteenth Amendment’s Due Process or Equal Protection Clauses using the strict scrutiny test.

The Supreme Court established in 1978 that any law or statute which infringes on the free exercise of a “fundamental right” must pass the strict scrutiny test to be valid under the Due Process Clause. [i] The right to marry has long been seen as fundamental; the Supreme Court clearly stated that “the decision to marry is a fundamental right” in 1987, [ii] and this fact is supported by abundant Supreme Court precedent. [iii]

The right to marry retains its fundamental character when extended to same-sex couples. Nothing indicates that the marriages of same-sex couples are the exercise of any new or different right. As U.S. District Court Judge Vaughn R. Walker argued in 2010, “Relative gender composition aside, same-sex couples are situated identically to opposite-sex couples in terms of their ability to perform the rights and obligations of marriage under California law.” [iv] Since the Proposition 8 amendment infringes on individuals’ free exercise of a fundamental right, it must pass the strict scrutiny test to be valid under the Due Process Clause.

According to the Supreme Court, laws which prejudicially target a suspect class of the American people must pass the strict scrutiny test to survive an Equal Protection Clause evaluation. [v] The Court defines a suspect class as a group “with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” [vi]

Even a cursory examination of recent American history leads us to classify gays and lesbians as a suspect class. Much of the American citizenry holds a deep-rooted animus against gays and lesbians, and there is a clear historical trend of bias, hatred, and discrimination being directed against gays and lesbians. As such, laws which intentionally target the liberties and rights of gays and lesbians ¾ including Proposition 8 ¾ must pass the strict scrutiny test to be valid under the Equal Protection Clause.

Prop. 8 Fails the Strict Scrutiny Test

Under the strict scrutiny test, the Supreme Court says that laws “may be justified only by compelling state interests, and must be narrowly drawn to express only those interests.” [vii] Proponents of Proposition 8 have offered a litany of interests which they argue the amendment serves, including “(1) furthering California’s interest in childrearing and responsible procreation, (2) proceeding with caution before making significant changes to marriage, (3) protecting religious freedom, and (4) preventing children from being taught about same-sex marriage in schools.” [viii] Examining each of these four areas in turn, we see that Proposition 8 fails to narrowly address any compelling state interest.

In arguing that the amendment furthers an interest in responsible procreation and childrearing, proponents ignore several important realities. First, California law does not establish any direct relation between the ability to procreate and the right to marry. Second, the California State Supreme Court established in 2008 that California’s “current policies and conduct … recognize that gay individuals are fully capable of … responsibly caring for and raising children.” [ix] Finally, research shows beyond any reasonable doubt that parents’ genders do not significantly impact children’s developmental outcomes. [x] In light of this evidence, it is clear that Proposition 8 does not further an interest in responsible procreation and childrearing.

In urging caution before making significant changes to marriage, proponents fail to acknowledge that recent California history clearly demonstrated that the extension of marriage to same-sex couples does not negatively impact either society or the institution of marriage. [xi] Permitting same-sex couples to marry in no way decreased the incentives for opposite-sex couples to marry. Furthermore, the extension of marriage to same-sex couples actually improved the stability of same-sex relationships, thus improving society as a whole. As such, there is no compelling interest in proceeding with caution in this area.

That Proposition 8 is required to protect religious freedoms is a fundamentally-flawed argument. “As a matter of law,” Judge Walker points out, “Proposition 8 does not affect the rights of those opposed to homosexuality or to marriage for couples of the same sex.” [xii] Furthermore, no aspect of California state law requires religious organizations to perform or recognize same-sex marriages. Proposition 8 is thus not even rationally-related to protecting religious freedoms, so this argument cannot justify upholding the law.

Finally, Proposition 8′s relation to educational curriculum is loose at best. Since schools describe the world as it is, changing the world in any way will likely lead to changes in curriculum; [xiii] this does not, however, mean that protecting school curriculum provides a compelling interest for preventing societal changes. If proponents wish to ensure that their state’s school curriculum does not speak about same-sex marriage, they are constitutionally permitted to do so. Proposition 8 does not narrowly affect school curriculum, however, so this argument provides no justification for upholding the amendment.

In Conclusion

Proposition 8 violates both the Due Process and Equal Protection clauses of the 14th Amendment. Banning same-sex marriage infringes on the liberty of a suspect class of individuals, and Proposition 8 must therefore pass the strict scrutiny test to remain valid under the Fourteenth Amendment. Since it fails to narrowly address a compelling state interest, and therefore fails the strict scrutiny test, Proposition 8 is unconstitutional.


[i] Zablocki v. Redhail, 434 U.S. 374, 388

[ii] Turner v. Safely, 482 U.S. 78, 95

[iii] see Zablocki v. Redhail, 384; Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40 [1974]; Loving v. Virginia, 388 U.S. 1, 12 [1967]; and Griswold v. Connecticut, 381 U.S. 479, 486 [1965]

[iv] Perry v. Schwarzenegger, 704 F. Supp. 2d 921 [N.D. Cal. 2010]

[v] United States v. Carolene Products Co., 304 U.S. 144, Footnote 4 [1938]

[vi] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 [1973]

[vii] Carey v. Population Services International, 431 U.S. 678, 686 [1977]

[viii] Perry v. Brown, 671 F.3d 1052, 1086 [9th Cir. 2012]

[ix] In re Marriage Cases, 43 Cal. 4th 757, 821-822 [2008]

[x] Perry v. Schwarzenegger, 127

[xi] see Perry v. Schwarzenegger, 126

[xii] Perry v. Schwarzenegger, 130

[xiii] see Perry v. Brown, 1091-1092

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