Repealing Rights: Proposition 8, Perry, and Crawford Contextualized

Abstract

California's Proposition 8 stripped same-sex couples of the right under the California Constitution to "marry" civilly, while leaving in place the right to every other state-controlled legal incident of marriage. The U.S. District subsequently court held that Prop 8 violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment to the U.S. Constitution in an opinion whose broad reasoning would invalidate the exclusion of same-sex couples from civil marriage by any state. The U.S. Court of Appeals for the Ninth Circuit affirmed on narrow grounds specific to California's legal history. Those defending Prop 8 in this litigation ("the Proponents") have argued that this narrow reasoning is legally erroneous and that Prop 8's constitutionality is affirmatively established by the U.S. Supreme Court's 1982 decision in Crawford v. Los Angeles Board of Education, which said that state laws merely repealing rights not required by the Fourteenth Amendment (here designated "constitutionally optional rights") do not violate that Amendment. This paper, originally presented at the N.Y.U. Review of Law & Social Change Symposium “Making Constitutional Change: the Past, Present, and Future Role of Perry v. Brown” held October 5, 2012, argues that the Proponents' optional rights argument misreads Crawford, ignoring the context of the broad pronouncements in this "political restructuring" case. Properly read, Crawford's blunt statements about the constitutionality of the repeal of constitutionally optional rights are limited to measures, unlike Prop 8, that operate neutrally rather than repealing a right only from a disfavored group (and the fact that state law treated the right to marry as a right to marry the person of one's choice equally available to Californians of all sexual orientations suffices to show that Prop 8 was not an impartial repeal) and that do not entrench themselves by disbarring legislatures from re-extending such optional rights beyond the point established by a repealing state law.