Legal Landscape // Jon W

Legal Landscape // jon w. davidson, legal director

The Power of Precedent our nation’s model of Rather than modify California’s marriage law, jurisprudence is built on a system of precedent, Prop 8 amended the California Constitution in meaning that the decision in one lawsuit not an unusual way, withdrawing from gay people, only resolves that case but guides future lawsuits. but no others, the right to equal protection when It also ensures that the accumulated wisdom it comes to marriage. Like Amendment 2, Prop 8 of past decisions influences the results in those barred legislators from ever affording such equal that follow. treatment to the gay minority. The majority opinion in Perry v. Brown is Citing Romer, the Perry majority explains squarely based on precedent, not politics. When that “Proposition 8 denies ‘equal protection politicians attack the decision in Perry as the of the laws in the most literal sense,’ because it work of “rogue judges,” they reveal a frightening ‘carves out’ an ‘exception’ to California’s equal misunderstanding of the American legal system. protection clause by removing equal access to Judges are bound by precedent. The Ninth Circuit marriage, which gays and lesbians had previously judges who decided Perry were simply doing their enjoyed, from the scope of that constitutional job—following precedent to enforce the legal guarantee.” Perry continues, again quoting Romer: protections that the Constitution safeguards “Like Amendment 2, Proposition 8 ‘by state for everyone. constitutional decree...put[s] [gay people] in a The precedent on which Perry rests most solitary class with respect to’ an important aspect heavily is the 1996 Supreme Court opinion in of human relations, and accordingly ‘imposes a Romer v. Evans, a ruling the Perry majority cites special disability” on them alone. jon w. davidson more than two dozen times. As the opinion in In Romer, Justice Kennedy explained that Perry points out, Proposition 8 is “remarkably one of the most fundamental principles of equal similar” to Colorado’s Amendment 2, which protection is that “the Constitution neither knows prohibited the state and its political subdivisions nor tolerates classes among citizens.” The Ninth When politicians from providing lesbians, gay men, and bisexuals Circuit was bound to apply Romer’s holding to any legal protection against discrimination Proposition 8. attack the on the basis of sexual orientation. In Romer, There is much one can learn from Perry. There Lambda Legal, along with the ACLU and some is restraint in the judges’ decision not to decide decision in Perry, of Colorado’s top lawyers, successfully convinced whether the Constitution requires all states to they reveal a the Supreme Court to rule that Amendment 2 allow same-sex couples to marry. There is humor was unconstitutional. in the point that “Had Marilyn Monroe’s film frightening As the Supreme Court explained, Amendment been called How to Register a Domestic Partnership 2 involved government discrimination of with A Millionaire, it would not have conveyed the misunderstanding an “unusual character.” It “withdr[ew] from same meaning.” There is insight in the recognition of the American homosexuals, but no others, specific legal that we don’t celebrate “when two people merge protection...and...forb[ade] reinstatement of their bank accounts; we celebrate when a couple legal system. these laws and policies” except by “enlisting the marries.” There is wisdom in the understanding citizenry…to amend the State Constitution.’” that Prop 8 cannot reasonably further any purpose California’s passage of Prop 8 closely parallels other than making gay people unequal. The one Colorado’s passage of Amendment 2. Both thing there is not, however, is politics. amendments involved electoral backlashes to civil rights advances by the state’s gay minority.