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Duly Noted

Tuesday, Feb 7, 2012, 1:33 pm

Big Win For Gay Marriage: 9th Circuit Strikes Down Prop 8

By Lindsay Beyerstein

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Shutterstock gavel image.  

The 9th Circuit Court of Appeals has struck down California's gay marriage ban as unconstitutional.

The court's reasoning was simple: If everyone is equal under the law, like the Constitution says, then the law can't single out a group of people and treat them differently for no reason.

Yes, a majority of Californians voted to treat gay couples like second-class citizens when they passed Proposition 8, but that's not enough.

In California, same-sex and opposite sex-domestic partners have the same rights as married couples. So, the only purpose of Prop 8 was to symbolically dis gay couples. That, according to the 9th Circuit, was not a good enough reason:

Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for 'laws of this sort.'

In the past, opponents of marriage equality have argued that it is necessary to discriminate against gay couples for the greater good. For example, their warped conception of the "greater good" includes keeping children away from their same-sex parents.

As Walter Sobchak might put it, "Say what you will about the tenets of heteronormativity, at least it's an ethos." This kind of argument gives opponents of marriage equality legal  cover to insist that they're doing this for the children, or the social fabric, or whatever--and not just because they dislike gay people and want them to have fewer rights.

However, opponents of marriage equality can't defend Prop 8 on "greater good" grounds because the amendment doesn't affect the legal rights of couples in California, except insofar as opposite-sex couples can get marriage licenses and same-sex couples can't.

This is a major victory for marriage equality, but the fight isn't over yet. Opponents of marriage equality have said they will fight all the way to the Supreme Court.

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times' City Room. She also blogs at The Hillman Blog (, a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.

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