Proposition 8 Is Unconstitutional, But Not Because the Ninth Circuit Said So: The Equal Protection Clause Does Not Support a Legal Distinction Between Denying the Right to Same-Sex Marriage and Not Providing It in the First Place

In Perry v. Brown, the Ninth Circuit held that Proposition 8 is unconstitutional. But in doing so, the court stepped back from the breadth of the district court’s decision. The Ninth Circuit did not address whether same-sex marriage is a fundamental constitutional right. Nor did the Ninth Circuit address whether the Equal Protection Clause categorically prevents states from limiting marriage to opposite-sex couples. Instead, the Ninth Circuit reached the narrow conclusion that Proposition 8 violates the Equal Protection Clause because it withdrew a preexisting legal right from a marginalized group without any legitimate purpose. The Ninth Circuit should have held that the Equal Protection Clause prohibits any denial of the right to same-sex marriage, regardless of whether it is withdrawn or withheld. Accordingly, the Supreme Court should affirm the Ninth Circuit, but disregard its reasoning. The Court should instead adopt the district court’s reasoning. Part II provides background information on the facts and district court bench trial that led to the Ninth Circuit’s decision in Perry. Part III then summarizes and explains the decision. Part IV argues that the U.S. Supreme Court’s equal protection jurisprudence does not support the narrowness of the Perry court’s holding. Part V concludes