法律英语：122 Is Proposition 8 Constitutional?

by Adam Freedman

Today’s topic:  Proposition 8, gay marriage, and the Constitution.

And now, your daily dose of legalese:  This article does not create an attorney-client relationship with any reader.  In other words, although I am a lawyer, I’m not your lawyer.  In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.
The podcast edition of this article was sponsored by Go to Meeting.  With this meeting service, you can hold your meetings over the Internet and give presentations, product demos and training sessions right from your PC. For a free, 45 day trial, visit GoToMeeting.com/podcast.

Prop¹ 8 Suffers a Defeat in the Court
On August 3, 2010, a federal judge struck down California’s Proposition 8, which prohibited the Golden State from issuing marriage licenses² to same-sex couples.  I’ll explain what the judge decided³--and why--and what’s next in the legal battle over gay marriage.
Round Two for Gay Marriage in California
Prop 8 was passed by California’s voters in November 2008.  It amended⁴ the California Constitution with the following sentence: “Only marriage between a man and a woman is valid⁵ or recognized in California.” 

Prop 8 was actually “round two” in California’s battle over gay marriage.  In November 2000, the voters of California adopted a similar initiative known as Proposition 22, or the California Defense⁶ of Marriage Act.   However, as I discuss in an earlier article, the California Supreme⁷ Court struck down Prop 22 on the grounds that it violated the California Constitution.
What Is the Perry Lawsuit⁸?
Prop 8 was intended to address that earlier decision striking down Prop 22 by amending⁹ the California Constitution itself.  A few months after the passage of Prop 8, a number of gay couples filed a lawsuit against Governor Schwarzenneger and various other state officials challenging the law.  The lawsuit is known as Perry v. Schwarzenneger.
What Did the Prop 8 Ruling Say?
On August 3, 2010, Federal District Judge Vaughn Walker issued his decision against Prop 8. The decision is 136 pages long, so I won’t be able to describe every detail.   But the quick and dirty summary is that California’s decision to restrict marriage to opposite-sex couples violates the Fourteenth Amendment¹⁰ of the US Constitution--and the US Constitution trumps¹¹ the California constitution.
What Does the Fourteenth Amendment Say?
The Fourteenth Amendment is one of three amendments¹² adopted after the Civil War to ensure that America’s newly-freed slaves would enjoy the full rights of citizenship¹³.  Over time, courts have extended the reach of the Fourteenth Amendment beyond racial equality. Judge Walker’s ruling, however, marks the first time a federal court has held that the Fourteenth Amendment provides gay couples with a right to get married. Here’s how the judge got there.
The Fourteenth Amendment and Gay Rights
The Fourteenth Amendment says that no state shall:
deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction¹⁴ the equal protection of the laws.
The first part of that sentence is known as the “Due Process Clause” and the second part is the “Equal Protection Clause.”  Both clauses played a role in this case.

Let’s first talk about the Due Process Clause. When government action places a burden on the exercise of a “fundamental right”--such as the right to privacy--then it can be challenged under the Due Process Clause.  Earlier precedents¹⁵ have established that the right to marry is a “fundamental right.”  But the question is whether that fundamental right is limited to opposite-sex couples?
Is Marriage a Fundamental Right?
In what is likely to be one of the more controversial aspects of his decision, Judge Walker held that “gender no longer forms an essential part of marriage.” In other words, the “fundamental right” to marry applies to any two consenting adults--gay or straight.   The judge then concluded that California has no “legitimate¹⁶ interest” in denying marriage to gay couples and, therefore, Prop 8 violates the Due Process Clause.
What Is the Equal Protection Clause?
As for the Equal Protection Clause, on its face, it requires that all persons be treated equally under the law.  In reality, however, many, many laws require that different categories of people receive different treatment. 

Think about it: various laws say things like people under 16 can’t drive a car; or people under 21 can’t drink alcohol, or that women can’t serve in combat units in the military.  Don’t those violate “equal protection?”  The key is that courts will generally uphold such laws as long as they have a rational basis.  Some laws, however, are held to a higher standard--known as “strict scrutiny”--if they are found to target a “suspect class,” that is, a group that has suffered a history of unequal treatment.
The Equal Protection Clause and Gay Marriage
Judge Walker held that Prop 8 discriminates¹⁷ against gay individuals on the basis of both sex and sexual orientation--by denying them the right to choose a marital¹⁸ partner.  He then stated that Prop 8 violates the Equal Protection Clause because it is not rationally related to any legitimate government end.  The judge also said that laws such as Prop 8 should be treated to “strict scrutiny” because gays constitute a “suspect class.”  The court’s language is potentially significant because no federal court has held that gays and lesbians constitute a “suspect class” under the Equal Protection Clause.  However, because the court’s decision did not actually depend on using “strict scrutiny,” that language is not an official part of the court’s holding.

One interesting aspect of this case is that California already allows gay couples to enter into so-called domestic partnerships¹⁹, which provide essentially²⁰ the same rights and obligations as traditional marriage.  However, the Court held that domestic partnerships don’t solve the Constitutional problems because domestic partnerships “do not provide the same social meaning as marriage.”   
What’s Next for Gay Marriage?
Judge Walker’s ruling is not the end of the story--the issue of gay marriage may well be coming to an appellate court near you.  The Prop 8 lawsuit is already being appealed to the Ninth Circuit Court of Appeals and is virtually certain to end up in the Supreme Court. 

Judge Walker’s ruling does not even mean that gay marriage will immediately resume in California--the Ninth Circuit has decided that Prop 8 will remain in effect until the current appeal is resolved.  Nor does it mean that other states must recognize California same-sex marriages.  The federal Defense of Marriage Act prohibits that.  Having said that, the Defense of Marriage Act itself is being challenged in--you guessed it--a lawsuit; this one originated in Massachusetts.

The coming months and years will be a fascinating time for the legal definition of “marriage.”  As for me, I kind of like the Chinese man who got around the whole problem a few years ago by marrying himself.  When asked why he did it, he simply said “this marriage makes me whole again.”

Thank you for reading Legal Lad’s Quick and Dirty Tips for a More Lawful²¹ Life.

You can send questions and comments to.............Please note that doing so will not create an attorney-client relationship and will be used for the purposes of this article only.
 

1 prop   

vt.支撑；n.支柱，支撑物；支持者，靠山

参考例句：

• A worker put a prop against the wall of the tunnel to keep it from falling.一名工人用东西支撑住隧道壁好使它不会倒塌。
• The government does not intend to prop up declining industries.政府无意扶持不景气的企业。

2 licenses   

n.执照( license的名词复数 )v.批准，许可，颁发执照( license的第三人称单数 )

参考例句：

• Drivers have ten days' grace to renew their licenses. 驾驶员更换执照有10天的宽限期。 来自《现代汉英综合大词典》
• Jewish firms couldn't get import or export licenses or raw materials. 犹太人的企业得不到进出口许可证或原料。 来自辞典例句

3 decided   

adj.决定了的，坚决的；明显的，明确的

参考例句：

• This gave them a decided advantage over their opponents.这使他们比对手具有明显的优势。
• There is a decided difference between British and Chinese way of greeting.英国人和中国人打招呼的方式有很明显的区别。

4 Amended   

adj. 修正的 动词amend的过去式和过去分词

参考例句：

• He asked to see the amended version. 他要求看修订本。
• He amended his speech by making some additions and deletions. 他对讲稿作了些增删修改。

5 valid   

adj.有确实根据的；有效的；正当的，合法的

参考例句：

• His claim to own the house is valid.他主张对此屋的所有权有效。
• Do you have valid reasons for your absence?你的缺席有正当理由吗？

6 defense   

n.防御，保卫；[pl.]防务工事；辩护，答辩

参考例句：

• The accused has the right to defense.被告人有权获得辩护。
• The war has impacted the area with military and defense workers.战争使那个地区挤满了军队和防御工程人员。

7 supreme   

adj.极度的，最重要的；至高的，最高的

参考例句：

• It was the supreme moment in his life.那是他一生中最重要的时刻。
• He handed up the indictment to the supreme court.他把起诉书送交最高法院。

8 lawsuit   

n.诉讼，控诉

参考例句：

• They threatened him with a lawsuit.他们以诉讼威逼他。
• He was perpetually involving himself in this long lawsuit.他使自己无休止地卷入这场长时间的诉讼。

9 amending   

改良，修改，修订( amend的现在分词 )； 改良，修改，修订( amend的第三人称单数 )( amends的现在分词 )

参考例句：

• Amending acts in 1933,1934, and 1935 attempted to help honest debtors rehabilitate themselves. 一九三三年，一九三四年和一九三五年通过的修正案是为了帮助诚实的债务人恢复自己的地位。
• Two ways were used about the error-amending of contour curve. 采用两种方法对凸轮轮廓曲线进行了修正。

10 amendment   

n.改正，修正，改善，修正案

参考例句：

• The amendment was rejected by 207 voters to 143.这项修正案以207票对143票被否决。
• The Opposition has tabled an amendment to the bill.反对党已经就该议案提交了一项修正条款。

11 trumps   

abbr.trumpets 喇叭；小号；喇叭形状的东西；喇叭筒v.（牌戏）出王牌赢（一牌或一墩）( trump的过去式 )；吹号公告，吹号庆祝；吹喇叭；捏造

参考例句：

• On the day of the match the team turned up trumps. 比赛那天该队出乎意料地获得胜利。 来自《简明英汉词典》
• Every time John is late getting home he trumps up some new excuse. 每次约翰晚回家都会编造个新借口。 来自《简明英汉词典》

12 amendments   

（法律、文件的）改动( amendment的名词复数 )； 修正案； 修改； （美国宪法的）修正案

参考例句：

• The committee does not adequately consult others when drafting amendments. 委员会在起草修正案时没有充分征求他人的意见。
• Please propose amendments and addenda to the first draft of the document. 请对这个文件的初稿提出修改和补充意见。

13 citizenship   

n.市民权，公民权，国民的义务(身份)

参考例句：

• He was born in Sweden,but he doesn't have Swedish citizenship.他在瑞典出生，但没有瑞典公民身分。
• Ten years later,she chose to take Australian citizenship.十年后，她选择了澳大利亚国籍。

14 jurisdiction   

n.司法权，审判权，管辖权，控制权

参考例句：

• It doesn't lie within my jurisdiction to set you free.我无权将你释放。
• Changzhou is under the jurisdiction of Jiangsu Province.常州隶属江苏省。

15 precedents   

引用单元； 范例( precedent的名词复数 )； 先前出现的事例； 前例； 先例

参考例句：

• There is no lack of precedents in this connection. 不乏先例。
• He copied after bad precedents. 他仿效恶例。

16 legitimate   

adj.合法的，合理的，合乎逻辑的；v.使合法

参考例句：

• Sickness is a legitimate reason for asking for leave.生病是请假的一个正当的理由。
• That's a perfectly legitimate fear.怀有这种恐惧完全在情理之中。

17 discriminates   

分别，辨别，区分( discriminate的第三人称单数 )； 歧视，有差别地对待

参考例句：

• The new law discriminates against lower-paid workers. 这条新法律歧视低工资的工人。
• One test governs state legislation that discriminates against interstate commerce. 一个检验约束歧视州际商业的州立法。 来自英汉非文学 - 环境法 - 环境法

18 marital   

adj.婚姻的，夫妻的

参考例句：

• Her son had no marital problems.她的儿子没有婚姻问题。
• I regret getting involved with my daughter's marital problems;all its done is to bring trouble about my ears.我后悔干涉我女儿的婚姻问题, 现在我所做的一切将给我带来无穷的烦恼。

19 partnerships   

n.伙伴关系( partnership的名词复数 )；合伙人身份；合作关系

参考例句：

• Partnerships suffer another major disadvantage: decision-making is shared. 合伙企业的另一主要缺点是决定要由大家来作。 来自英汉非文学 - 政府文件
• It involved selling off limited partnerships. 它涉及到售出有限的合伙权。 来自辞典例句

20 essentially   

adv.本质上，实质上，基本上

参考例句：

• Really great men are essentially modest.真正的伟人大都很谦虚。
• She is an essentially selfish person.她本质上是个自私自利的人。

21 lawful   

adj.法律许可的，守法的，合法的

参考例句：

• It is not lawful to park in front of a hydrant.在消火栓前停车是不合法的。
• We don't recognised him to be the lawful heir.我们不承认他为合法继承人。