Proposition 8 Is Bad Law and Must Be Overturned

In legal terms, Prop 8 denies equal protection to millions of families

By Casey Pick

, Policy Fellow with the National LGBT Bar Association

March 4, 2013

About Casey Pick:

Casey Pick is a policy fellow with the National LGBT Bar Association, and a licensed attorney in the state of California.

As Americans weigh in on the question of whether the Supreme Court should overturn Proposition 8, arguments range from political to personal, from high academia to "common sense." As a member of the National LGBT Bar Association, my take on this question is legal. What does fidelity to our highest law, the United States Constitution, require?

There is no rational basis upon which to deprive committed same-sex couples of the legal rights, responsibilities, and recognition conferred by civil marriage. As legal professionals and advocates for justice—and citizens subject to this legal regime—members of the LGBT Bar witness this inequity every day.

[See a collection of political cartoons on gay marriage.]

While not every injustice is illegal, our Constitution is clear: No state may "deny to any person within its jurisdiction the equal protection of the laws." In legal terms, Proposition 8 denies equal protection to millions of families who are "similarly situated" to their straight neighbors; they live, love, and die like everyone else. As officers of the court, we are tired of treating them differently.

We have guided countless same-sex couples through a labyrinth of unjust taxation on their property, healthcare, and shared income. We have advised parents on the necessity of adopting their own children, so that even when the law does not recognize couples as spouses the state will acknowledge them as guardians. We have been present when, after decades together, a dying partner desperately looks for a loophole to allow his husband to keep their home—precious time that should be spent with loved ones, not lawyers.

[Read the U.S. News Debate: Should Gay Marriage be Legal Nationwide?]

The injustice of Proposition 8 is documented in wills, trusts, contracts and powers of attorney, the piles of paperwork that our community builds to try to replace the marriage licenses denied by the state—and as much as we try, these expensive and complicated measures fail far more often than they succeed.

We have been contending with Proposition 8 and laws like it for years, waiting for the day that the United States Supreme Court would take up the case. Our experiences have made it clear—Proposition 8 is bad law, and must be erased.