August 4, 2010 6:32PM # California’s Gay Marriage Ban Lacks a Rational Basis By [Ilya Shapiro](https://www.cato.org/people/ilya-shapiro) --- SHARE I haven’t even begun to dig into Judge Walker’s [138-page (!) opinion](http://i.cdn.turner.com/cnn/2010/images/08/04/prop8ruling.pdf?hpt=T1) that strikes down Proposition 8 on both due process and equal protection grounds, but here are three key excerpts. First, the conclusion that government lacks a “rational basis” for preventing same-sex couples from marrying: > Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples. Then the equal protection conclusion: > Because Proposition 8 disadvantages gays and lesbians without any rational justification, Proposition 8 violates the Equal Protection Clause of the Fourteenth Amendment. And finally the due process conclusion: > As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “\[t\]here is a significant symbolic disparity between domestic partnership and marriage.” \[citation omitted\] Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment. In short, the court found none of the government’s asserted interests — including tradition, moving slowly on social change, and promoting different-sex parenting — to be “legitimate.” This is obviously a big deal and will be appealed — and no gay marriages will be allowed until the appellate process will have run its course (most likely up to the Supreme Court). Currently, same-sex couples can only legally wed in Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and Washington, D.C. Cato’s chairman Bob Levy, also co-chair of the advisory board to the American Foundation for Equal Rights (which sponsored the suit) had this to say: > The principle of equality before the law transcends the left-right divide that so often defines issues in this country. Today, people from across that divide came together to fight a law that cut to the very core of our nation’s character. Prop. 8 attempted to deny people an indispensable right vested in all Americans. This Judge and this Court bravely confronted wrongful discrimination and came down on the right side – defending and enforcing equal protection, as demanded by the Constitution. I too think this was the correct decision — reserving, of course, the right to criticize parts once I’ve done more than skim it — though I fear it will poison our politics in a way not seen from a legal decision since *Roe v. Wade*. *Roe v. Wade* is not what today’s ruling should be compared to, however — both because this was only one district judge and because *Roe v. Wade* was a tortured fabrication of constitutional law that no legitimate constitutional scholar really defends (not even Justice Ruth Bader Ginsburg). I would liken it more to one more step in the civil rights movement, giving all Americans equality under the law. If you want a court case to compare it to, try *Loving v. Virginia* (which struck down bans on interracial marriage). I should also add that this all could have been averted if government just got out of the marriage business entirely: have civil unions for whoever wants them — which would be a contractual basket of rights not unlike business partnerships — and let religious and other private institutions confer whatever sacraments they want. If the state provides the institution of marriage, however, it has to provide it to all people. ##### Related Tags [Government and Politics](https://www.cato.org/government-politics), [Constitutional Law](https://www.cato.org/constitutional-law), [Robert A. Levy Center for Constitutional Studies](https://www.cato.org/robert-levy-center-constitutional-studies) [![Creative Commons License](/build/cato_2020/images/creative-commons.svg)](http://creativecommons.org/licenses/by-nc-sa/4.0/) This work is licensed under a [Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License](https://creativecommons.org/licenses/by-nc-sa/4.0/).