California’s Proposition 8 deemed unconstitutional
Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California.
It’s LGBT History Month in the UK, but it was across the Atlantic that history was being made yesterday.
A court in the United States ruled yesterday on the validity of California’s Proposition 8, the referendum proposal which introduced a ban on marriage equality in the state.
The 9th Circuit Court of Appeals, sitting in San Francisco, issued its ruling at 10am local time (6pm Irish time). It stated that Proposition 8 was unconstitutional as a matter of US federal law.
Although the [US] 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. There was no such reason that Proposition 8 could have been enacted.
The Court’s ruling can be read here (pdf). The AP has some excerpts from the ruling here. The National Center for Lesbian Rights has issued a statement. There’s also an easy-to-understand analysis here.
Although strident in its language, the Court confined itself to a narrow issue: it did not address the question of the right to marry or equality for same-sex couples in general. Rather, the court looked at the particular circumstances which arose in this case.
California had already introduced marriage equality before the proposal to ban same-sex marriage was introduced, and eventually passed by voters.
The Court ruled that this measure, removing a right which had previously existed, was unconstitutional.
Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships. Nothing more, nothing less.
Does the ruling have any implications for Ireland? Well yes and no and maybe (but mostly no).
Irish courts can have regard to judgements from other countries, although such judgements are not binding.
The circumstances of US case don’t arise in the Irish context: although the Fianna Fáil-led government introduced legislation in 2004 to ban marriage between same-sex couples, Ireland hasn’t already expressly provided for equality.
(Compare Spain, however: there, the previous Socialist government introduced marriage equality, but before recent elections, the conservative Partido Popular pledged to remove such equality. It remains to be seen whether the current Spanish government will follow through with this election promise and, if they do, whether such a move will stand up to EU and/or European human rights laws.)
The case being taken by Senator Katherine Zappone and Dr Ann Louise Gilligan to have their Canadian marriage recognised in Ireland is currently awaiting a hearing date from the Supreme Court. Before Christmas, they were unsuccessful in including a challenge to the 2004 legislation, but in theory the legislation may be open to challenge.
Although the US ruling relates to different circumstances, some of the points it makes may well be relevant to the Irish situation.
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