Proposition 8 cannot withstand any level of scrutiny under the Equal Protection Clause, as excluding same-sex couples from marriage is simply not rationally related to a legitimate state interest.
Rather, the evidence shows that Proposition 8 harms the state's interest in equality, because it mandates that men and women be treated differently based only on antiquated and discredited notions of gender.
Moreover, the state cannot have an interest in disadvantaging an unpopular minority group simply because the group is unpopular.
A private moral view that same-sex couples are inferior to opposite-sex couples is not proper basis for legislation.
Here, the purported state interests fit so poorly with Proposition 8 that they are irrational. … What is left is evidence that Proposition 8 enacts a moral view that there is something "wrong" with same-sex couples.
The evidence at trial … uncloaks the most likely explanation for its passage: a desire to advance the belief that opposite-sex couples are morally superior to same-sex couples.
Moral disapproval alone is an improper basis on which to deny rights to gay men and lesbians.
I would really like to see how a conservative SCOTUS argues to overrule this decision. And if it should dare to do so, the corresponding outrage and backlash.
As my friend Neil noted elsewhere...
Yes to birthright citizenship. Yes to the "mosque" in NYC. Yes to gay marriage. Yes to universal coverage. Yes to an inclusive, decent society.
