Growing up, Kris Perry was afraid to love, afraid to dream of a future and afraid to let herself want a family. But Tuesday morning the 9th U.S. Circuit Court of Appeals released its decision to uphold the unconstitutionality of Proposition 8, and a small measure of hope put more of those fears to rest.
Perry is the namesake of Perry v. Brown, the lawsuit against the gay marriage ban enacted by California voters on Nov. 4, 2008. Because California allowed same-sex marriage before Proposition 8 was enacted, the district court ruled that it violated the due process clause of the Fifth Amendment and the equal protection clause of the 14th Amendment.
Judge Stephen Reinhardt wrote the court’s opinion on the case and reaffirmed the district court’s decision at the appellate level.
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently,” the opinion read. “There was no such reason that Proposition 8 could have been enacted.”
The opinion states that because Proposition 8 had no effect on child rearing, procreation, religious freedom or control of education, it could only have been discriminatory in nature.
Mary Volcansek, a political science professor, clarified that the Supreme Court decision “said that the restriction of marriage to only one man and one woman did not pass the rational basis test under the 14th Amendment equal protection clause.”
“In other words,” she said, “the decision did not legalize gay marriage.”
We have not heard the last of Perry v. Brown and nuptials will not be recited anytime soon in California. The state may still appeal the decision one step higher, but Perry’s side is confident that they can win at any level.
“The Supreme Court is under no obligation to hear the case,” Volcansek said, “and might, as it did in the case of affirmative action in universities, allow different legal positions to exist in different parts of the country.”
The appellate court expressly chose not to rule on the broader question of same-sex marriage across the country, but the decision still presents broader implications for the gay rights movement.
In most states where gay marriage is allowed, legalization came through the court system and not through legislation. The Perry v. Brown decision sets up a precedent that I believe will lead to the legalization of gay marriage across the country in our lifetimes.
Proposition 8 was determined to be solely discriminatory in nature, and it is indicative of the anti-gay rights sentiment across the country. Secular arguments against gay marriage have lost in the public sphere, and people against equal rights must now find arguments in religion, which has historically been the final safe haven for discrimination.
This decision was a step in the right direction for the legal battle that I believe will end with equal rights for gay Americans. But perhaps, more important than its legal implications, the decision is at least a small fulfillment of the promise and the challenge that Harvey Milk issued in what is known as “The Hope Speech” shortly before he died.
This decision is an ember of the hope for a better world and a better tomorrow that Milk told his supporters they must give to gay people across the country. This decision is an ember that will light a fire of change in the American gay rights movement.
David Shaver is a sophomore journalism major from Canyon.