The Unconstitutionality of Prop 8?

English: The inscription Equal Justice Under L...

Last week the Ninth Circuit Court of Appeals declared the Proposition 8 ban on same-sex marriage unconstitutional. Prop 8 was a California ballot proposition passed during the November 2008 election and mandated that “only marriage between a man and a woman is valid or recognized in California.” The measure was previously overturned in United States District Court on August 4, 2010 (Perry v. Schwarzenegger) on the basis that Prop 8 violated the Equal Protection Clause of the United States Constitution:

“no state shall … deny to any person within its jurisdiction the equal protection of the laws.”

However, the reasoning behind the recent Ninth Circuit Court of Appeals decision is interestingly different. The previous rationale concerning the unconstitutionality of Prop 8 rested on the concept that the right to marriage was an inherent right under the 14th Amendments Equal Protection Clause. If heterosexuals have the right to marriage than homosexuals have the same right under the Equal Protection Clause as the U.S. Constitution forbids special laws for specific groups. Yet, the decision by the Ninth Circuit is based on the concept that the majority does not have the constitutional authority to remove rights from the minority via the voting process. The court stated, by “using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause.” In other words, in the United States of America, the people do not have the right to vote on the rights and liberties of others.

What do you think? Should people have the ability to decide which groups have which rights via the ballot box?



4 responses to “The Unconstitutionality of Prop 8?

  1. It was because there was no rational basis for taking away this right. The Prop 8 backers could not argue any policy reasons because California gives domestic partners the same legal rights as married couples, but denies them marriage licenses. So the court left the door open for discrimination with a rational basis (whatever that might be).

  2. Pingback: Hawaii The Department of the Attorney General Files Answers to Same-Sex Marriage Lawsuit « Hawaii News and Island Information

  3. Pingback: *#?@! Homosexual Agenda | Politics and Cardigans

  4. This is simply the checks and balances of the system working. The decision that Prop 8 is illegal will most likely be held up by the Supreme Court. This is the job of the courts. To read and interpret the meaning of the laws. It is understood that Prop 8 is to restrict homosexuals from getting married. Put it another way, ehat if Prop 8 restricted blacks from getting married, would it be illegal? It is the duty of the courts to ensure that the liberties of the citizens of this country to not get denied, even if we do not agree with them.

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