Breaking news out of the Ninth Circuit Court of Appeals: a three-judge panel has ruled California's controversial Proposition 8 unconstitutional. The most interesting aspect of the decision is the court's rejection of Proposition 8 as unconstitutional under rational basis review, the lowest standard of constitutional scrutiny: "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." That is a benchslap of somewhat epic proportions.
It is possible that review under the highest level of review, strict scrutiny, may have been appropriate here--the U.S. Supreme Court indicated that legislation regulating marriage and procreation "involves one of the basic civil rights of man" in Skinner v. State of Okl, ex rel. Williamson, 316 U.S. 535, 541 (1942). No matter, though, as a law found unconstitutional under rational basis review likely wouldn't stand a chance under the strict scrutiny standard.
The defendants in this case may now apply for rehearing en banc or may apply for a writ of certiorari with the U.S. Supreme Court. Based on the politics surrounding the case, the smart money is on the latter.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
