Proposition 8 ruling: Could it make legislatures gun shy about civil unions?

Our post about the

9th Circuit Court declaring Proposition 8, California's gay marriage ban, unconstitutional

, focused on the Colorado case that spelled doom for the state's anti-gay Amendment 2 circa the '90s. But could this ruling cause problems for measures like the

civil unions bill progressing in the Colorado Senate

? That's one concern of Kyle Velte, a University of Denver law professor who's studied the case. "My fear is that other states may be gun shy to give rights that are similar to marriage to gay and lesbian folks now," she concedes. "Are statehouses going to say, 'Should we pass civil unions that look exactly like marriage except for the word? Because under the Proposition 8 decision, we have a right to that word.'"

Velte notes that the 9th Circuit's majority decision, written by Judge Stephen Reinhardt, "is pretty much based based on Romer v. Evans," the Supreme Court case that overruled Amendment 2. Here's how Reinhardt's ruling introduces the subject:

This is not the first time the voters of a state have enacted an initiative constitutional amendment that reduces the rights of gays and lesbians under state law. In 1992, Colorado adopted Amendment 2 to its state constitution, which prohibited the state and its political subdivisions from providing any protection against discrimination on the basis of sexual orientation.... Amendment 2 was proposed in response to a number of local ordinances that had banned sexual-orientation discrimination in such areas as housing, employment, education, public accommodations, and health and welfare services. The effect of Amendment 2 was "to repeal" those local laws and "to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances or policies in the future.... The law thus "withdr{ew} from homosexuals, but no others, specific legal protection...and it forb[ade] reinstatement of these laws and policies.

Amendment 2's authors insisted that the initiative didn't discriminate against homosexuals; rather, it simply nixed those laws that made gays and lesbians more equal than the rest of the populace. But Justice Anthony Kennedy, writing for the Supreme Court majority in the case, rejected that assertion. This is how Reinhardt synopsized Kennedy's take:

The Supreme Court held that Amendment 2 violated the Equal Protection Clause because "[i]t is not within our constitutional tradition to enact laws of this sort" -- laws that "single[e] out a certain class of citizens for disfavored legal status," which "raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected." The Court considered possible justifications for Amendment 2 that might have overcome the "inference" of animus, but it found them all lacking. It therefore concluded that the law "classifie[d] homosexuals not to further a proper legislative end but to make them unequal to everyone else."

The 9th Circuit's majority signed on to this view. But in Velte's opinion, Judge N. Randy Smith's partial dissent is just as important.

"The dissent disagrees with the application of Romer," Velte notes. "He says that Amendment 2 was more broad than Proposition 8 -- that Amendment 2 really did take away any redress to statutes for GLBT folks, but Proposition 8 only took away a word: marriage. Gay folks in California had all the rights, so it was a surgical strike against one word."

Moreover, Velte believes that the majority decision is so narrowly written that rather than weighing in on the legality of same-sex marriage, "the Supreme Court could punt on this one."

Why? "The 9th Circuit didn't find a fundamental right to marry," she says. "They didn't even address the question. The way the court framed the question was, 'Is it okay to at one point in time grant marriage to gay people'" -- as California did prior to Proposition 8's passage -- "'and at a subsequent point take it away?'"

Page down to read more about Proposition 8, as well as to see two videos and the complete ruling. Besides, Velte continues, "The Supreme Court will often hear cases if there's a circuit split" -- meaning that courts have ruled differently on an issue, and a single standard needs to be set. In this case, though, "there is no circuit split. The 9th Circuit took a prior ruling, Romer, and applied it to a new context, which is what circuit courts are supposed to do.

"Can the court say, 'We need to take it to clarify the scope of Romer?' Perhaps, but I don't think they want to wade into this subject unless they absolutely have to. And I don't see that they have to."

Besides, there's another possible intermediate step, Velte points out. The ruling was handed down by a three-judge panel rather than the full 9th Circuit, and Proposition 8 backers could ask for all members to weigh in. And even if they decide to skip that step and directly petition the country's highest courts, the Supremes may simply allow the 9th Circuit ruling to stand instead of taking on the question of same-sex marriage in a broader sense.

"The trial court found that gay and lesbian folks have a fundamental right to marry under the U.S. Constitution, but this court shaved that away," Velte says. "They said, 'We do not need to consider whether they have a right to marry.' And as I was going through the ruling, I kept thinking, 'Punt, punt, punt.'"

If the Supreme Court does so, could a future court challenge at the state level try to use the Proposition 8 ruling to bump up civil unions to same-sex marriage? And might legislators on the fence refuse to back the former because they see the latter as political poison?

"I hope that's not the result," Velte says. "But I worry that it might be."

Below, see a pair of post-Proposition 8 decision segments from Rachel Maddow's MSNBC program featuring interviews with Ted Olson, the lead counsel arguing against Proposition 8, and Dahlia Lithwick, a senior editor at Slate. Lithwick, in particular, suggests that the frequent mentions of Romer v. Evans were intended as a bouquet to Justice Kennedy. They're followed by the complete 9th Circuit ruling. The main discussion of Amendment 2 and Romer v. Evans begins at the bottom of page 42 -- and Velte sees page 47 as key.

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Proposition 8 Ruling US Court of Appeals for the Ninth Circuit

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More from our Politics archive: "Civil unions bill could fail again unless Republican supporters step up."

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