Prop. 8 declared “unconstitutional”, case considered for the Supreme Court



By Julia Atkin

A prop 8 rally in Fresno, California. Photo by: Richard Johnstone

In a February 7th ruling of Proposition 8, the ban on same-sex marriage in California, the 9th Circuit Court of Appeals declared the amendment to be unconstitutional which incited massive controversy and debate. Prop. 8 supporters hope the case will be considered by the United States Supreme Court, but because of circumstances in the Supreme Court tenure system, any new president will have the potential to significantly alter the final ruling going forward.

“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,” said Judge Stephen Reinhardt in a statement representing the panel’s decision.

If the case reaches the US Supreme Court, a definite decision will be made, but the balance of judges could easily fall out of line if discussion begins as a new president is inaugurated. Out of the nine justices on the Court, three are nearing senior status, a form of retirement practiced in the Court in which a justice over 65 years of age with at least 15 years of service may work part-time for the same amount of money. In addition, his or her spot in the Supreme Court is marked vacant until the president chooses a justice to fill the seat.


The three judges are Ruth Bader Ginsburg, a liberal, Antonin Scalia, a conservative, and Anthony M. Kennedy, who generally votes conservatively but has been known to switch sides. Simply put, the new president will have the power to replace these justices with candidates of his personal preferences, ones that will vote in his favor. Many conservatives rejoiced in the possibility of new judges, no doubt because of Kennedy’s swing vote. But that doesn’t mean liberals are against it.

Tam senior Liza Brusman, openly bisexual and president of the Gay-Straight Alliance club at Tam, said, “I think that in some ways it would be really good if it ended up going to the Supreme Court because then we would have a very definitive answer about the constitutionality of allowing gay people to marry or not allowing gay people to marry. [Otherwise] different states would have a harder time being able to kind of make up their own rules.”

In an informal poll, members of the GSA agreed that the majority of Tam is comfortable with gay marriage. Brusman pointed out a new characteristic about the issue, relaying a fact she read that said 71 percent of college students supported gay marriage.

P.E. teacher Lorna Sturgeon, who is lesbian, said, “I didn’t use to have a really big opinion on it […] until I found out […] that if you marry someone, they’re automatically on your insurance. But for a gay person, and I just found this out last month, they can’t married, so they have to be domestic partners. When they are that situation, they get insurance for their partner but the insurance is seen as income by the district and you have to pay tax on that amount. That’s not fair!”

Sturgeon brings up a good point – the economic advantages of marriage. Along with the insurance benefits, married couples can file their state tax returns jointly, are entitled to inheritance rights, and at least one of them can legally call themselves a parent. As of now, gay Californians cannot.

But lucky for those couples, opinions can change. “One of my friends is against gay marriage and we have these really nice conversations where she hears my side, I hear her side,” said Sturgeon, “When I found [out about the insurance situation], I told her and she went, ‘Oh! That’s not fair!’ And so next time voting comes up, this person who’s so anti-gay marriage might actually vote for it […] because she now understands there’s a discrepancy.”

Senior Conner Crockett’s thoughts on this obvious discrepancy prompted another evolving point: the difference of opinion between old and young. “I always say discrimination, racism and ignorance is taught, not learned. You never see a two-year-old child turning a hose on a black person or carrying the poles that say ‘God hates fags’ because […] they don’t know until they overhear their parents in the kitchen bashing gays, or bashing blacks, or bashing Jews.”

Senior Justice Kennedy also recognized the generational gap. In 2003, he said, “Times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.”

Crockett approaches the gay marriage question with a question of his own, and it’s something to think about: “If a gay couple halfway across the country got married, how would that affect you and your family right now?”