Central to today's finding that Proposition 8 is unconstitutional are the peculiarities of California law involving propositions and this: "Fundamental rights, once recognized, cannot be denied to particular groups on the ground that these groups have historically been denied those rights." (Quoting from an earlier case, which quoted from an even earlier case – Hernandez v. Robles, 7 N.Y.3d 338, 381 (2006) (Kaye, C.J. dissenting)) (emphasis added).
What are those peculiarities of California's law regarding propositions, or voter initiatives? Well, there are different types.
Some propositions require fewer signatures to get on the ballot and are subordinate to the state constitution – the constitution can trump such a law if passed by the voters of California. Other propositions, let's call them super-propositions, require more signatures to get on the ballot and are of equal standing to the constitution – like an amendment or change to said constitution. Courts would have a tough time overturning such a law on California constitutional grounds because such a law would be part of that very constitution. It would be like the U.S. Supreme Court finding the 26th Amendment to the U.S. Constitution – setting 18 as the legal age of voter eligibility – unconstitutional!
The timeline of attempts to strip same sex couples of the right to marry through such propositions is critical here because of the panel's Equal Protection analysis. The panel might take issue with the title of this post as a "one way
street," since it countered, head on, the argument that the Constitution
ought not be a "one-way ratchet." But in doing so it made the point
that, while a state could extend rights or benefits and then then reverse course without violating the Constitution, a state cannot take away a right or benefit for only a particular class of individuals without a legitimate reason lest it violate Equal Protection; and animus
towards a group of people is not a legitimate reason.
Now, here's the timeline: a regular proposition outlawed same sex marriage in California back in the day; the California Supreme Court decided that law was unconstitutional; then the homophobic defenders of the sanctity of opposite-sex marriage got a super-proposition passed (Proposition 8). What the 9th Circuit panel is saying here, as I read it, is that, while Prop 8 was a super-proposition and thus could not be found unconstitutional under the California constitution. It would be unconstitutional under the U.S. Constitution because it had no purpose beyond taking something away from a certain group of people without any legitimate reason. And the something it took away was a fundamental right – a right that had already been recognized as extending to same sex couple by the California courts.
What if that right had not been recognized? In essence, what if the California Supreme Court hadn't overturned the first, regular proposition? The California Supreme Court could have decided that same sex couples have no right to marriage under the California Constitution. If that had happened, Prop 8 would not have been necessary, but a federal court might nonetheless have reviewed that earlier decision. Under the 9th Circuit's analysis, a federal court could not have found the earlier proposition unconstitutional on these same Equal Protection grounds. No right was taken away; the right never existed.
What if a super-proposition had been passed in the very beginning
describing marriage as between a man and a woman? California courts would probably not have found this unconstitutional, the reason being, again, because the proposition would have become part of that very constitution which the court was charged with interpreting. If challenged in Federal court, it would be debatable whether it stripped anyone of a right, since it simply defined marriage in California rather than took away a right that had been already recognized by a state court.
As the 9th Circuit panel wrote: "Withdrawing from a disfavored group the right to obtain a designation with significant societal consequences is different from declining to extend that designation in the first place, regardless of whether the right was withdrawn after a week, a year, or a decade. The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is ... the relative timing of the ... events is a fact, and we must decide this case on its facts."
I love this because it recognizes something truly beautiful about liberty: It should be easier to expand than contract; it should be simpler to say everyone gets x rather than this group of people don't get x, where x could be the right to marry, an education or tickets to a Broadway show. Furthermore, once we recognize that we have a right to something, it should be challenging for a state (or the state) to say that most of us have that right, but not this particular group of people.
So it may be possible to drive the wrong way down a one-way street, but it is perilous and disfavored. Put another way, enacting prejudice into law ought to be difficult.