Prof. NeJaime weighs in on Ninth Circuit's decision on Prop. 8

By Associate Professor Doug NeJaime

In a 2-1 decision, the Ninth Circuit Court of Appeals ruled that Proposition 8, the California constitutional amendment that eliminated the right to marry for same-sex couples, violates the federal Constitution. Writing for the court, Judge Reinhardt decided the case in the most narrow fashion available, basing his holding on the unique situation in California. The state maintains an entirely separate system for same-sex couples (domestic partnership) and provides all the same state-law rights and benefits of marriage through that system. In addition, unlike in other states, same-sex couples enjoyed the right to marry in California and had that right withdrawn by Proposition 8. Based on these unique facts, the court concluded that Proposition 8 fails to meet even the lowest level of scrutiny under the federal Equal Protection Clause. By ruling in a narrow fashion and basing its holding on the reasoning of Romer v. Evans (the U.S. Supreme Court decision striking down Colorado's Amendment 2, which withdrew and prohibited antidiscrimination protections for lesbians and gay men), the Ninth Circuit decided the case in a way that would allow the Supreme Court to affirm without having to significantly expand on its existing jurisprudence and without having to rule on marriage for same-sex couples on a national scale. In effect, the Ninth Circuit's decision allows the Supreme Court to continue the incremental, case-by-case trajectory of marriage for same-sex couples in the United States.