The Golden State’s Proposition 8 today failed the fourteenth amendment’s “equal protection” test because, a 2-1 panel of the Ninth Circuit held:
[T]he People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class.
Perry v. Brown, No. 10-16696, slip op. at 80 (9th Cir. Feb. 7, 2012).
Circuit Judge N. Randy Smith dissented on the question of whether taking away the right to marry from same-sex couples furthers a proper purpose of the state. Judge Smith focused on “a responsible procreation theory” and “an optimal parenting theory”.
The ruling affirmed the district court’s judgment striking down Proposition 8 as unconstitutional. The lower court also held that the referendum violated due process under the fourteenth amendment.