"The reasoning behind it was bold. The decision 'ringingly reaffirmed
the right to equality, the fundamental right to marriage.' ”
-----------------------------
"California Proposition 8 same-sex-marriage ban ruled
unconstitutional"
By Robert Barnes
February 7, 2012
A FEDERAL APPEALS PANEL in San Francisco ruled Tuesday that
California’s Proposition 8, which bans same-sex marriage, is
unconstitutional, a decision that could lead to the Supreme Court’s
consideration of the controversial social issue.
By a vote of 2 to 1, the panel overturned the measure, which in 2008
amended the state’s Constitution to limit marriage to a man and a
woman.
“Proposition 8 serves no purpose, and has no effect, other than to
lessen the status and human dignity of gays and lesbians in
California, and to officially reclassify their relationships and
families as inferior to those of opposite-sex couples,” U.S. Circuit
Judge Stephen Reinhardt wrote. “The Constitution simply does not allow
for laws of this sort.”
The panel took a narrow route in knocking down California’s
prohibition and did not address whether same-sex couples have a
federal constitutional right to marry. Such unions are unlikely to
resume in the nation’s most populous state until the appeals process
is completed.
But it was a significant development in a contentious national battle
over gay rights, including the ability to serve openly in the
military. Besides California, 28 states have constitutional amendments
that ban same-sex marriage, and 12 others have laws that restrict
unions to one man and one woman.
Six states and the District of Columbia allow gay couples to marry,
and three others are considering joining them. Polls show a striking
generational difference in acceptance, with young people far more in
favor of allowing same-sex unions.
There is a partisan difference as well. And if the issue reaches the
Supreme Court, as opponents of same-sex-marriage want, the arguments
could occur in the fall when the nation is consumed with a
presidential election.
The ideological differences were apparent on the three-judge panel.
Reinhardt, a Jimmy Carter appointee who is considered one of the
nation’s most liberal appellate judges, was joined by Judge Michael
Daly Hawkins, appointed by President Bill Clinton. Judge N. Randy
Smith, a conservative appointed by President George W. Bush,
dissented.
But the majority did not issue a broad ruling on the constitutionality
of same-sex marriage. Instead, it focused on the fact that gay couples
in California for a brief time had the right to marry, and that
Proposition 8 took that away.
In 2008, the California Supreme Court ruled 4 to 3 that same-sex
couples could not be denied the right to wed, and over the next five
months, about 18,000 such couples took marriage vows. But that fall,
52 percent of California voters supported Proposition 8, amending the
state Constitution to validate “only a marriage between a man and a
woman.”
Reinhardt said this “taking away” of a right by the majority was not
allowed.
“By using their initiative power to target a minority group and
withdraw a right that it possessed, without a legitimate reason for
doing so, the people of California violated the Equal Protection
Clause” of the federal Constitution, Reinhardt wrote.
He based the ruling on the Supreme Court’s 1996 decision in Romer v.
Evans . It involved an amendment to the Colorado Constitution that
prohibited the state or local jurisdictions from outlawing
discrimination against gays. It was in response to local governments
that had extended such protection.
But the Supreme Court said it was “not in our constitutional
tradition” to enact laws that single out “a certain class of citizens
for disfavored legal status.”
The Romer decision was written by Justice Anthony M. Kennedy, who has
been the deciding vote in the high court’s recent decisions supporting
gay rights. Reinhardt’s reliance on Romer suggests that the Supreme
Court could settle California’s same-sex-marriage issue in an equally
narrow way, without confronting whether there is a constitutional
right to marry.
In his dissent, Smith said that he did not think the Romer decision
mandated the outcome in the current case, and that the proper role for
the judiciary is to defer to the view that the proposition advanced
“legitimate state interests.”
Reinhardt and Hawkins, however, said the supporters of Proposition 8
proved no legitimate state interests. Because the amendment allowed
gay couples all rights except marriage, they said, it “could not have
reasonably been enacted to promote childrearing by biological parents,
to encourage responsible procreation, to proceed with caution in
social change, to protect religious liberty or to control the
education of schoolchildren.”
Andrew Pugno, general counsel for the ProtectMarriage.com coalition,
which supported Proposition 8, said the panel’s decision was “no
surprise.”
“Ever since the beginning of this case, we’ve known that the battle to
preserve traditional marriage will ultimately be won or lost not here,
but rather in the U.S. Supreme Court,” Pugno said.
He said his group has not decided whether to ask the full U.S. Court
of Appeals for the 9th Circuit to review the decision, or take the
case directly to the Supreme Court.
The attorneys who argued on behalf of gay couples — Theodore B. Olson,
who was solicitor general under President George W. Bush, and
Democratic lawyer David Boies — said the decision marks a milestone,
but they had slightly different takes on whether it would command a
Supreme Court review.
Boies said the court might let the narrow ruling stand, because it
would affect only marriages in California. He said he thought the
court would be “somewhat less likely to take it.”
But Olson noted that although the ruling was narrow, the reasoning
behind it was bold. The decision “ringingly reaffirmed the right to
equality, the fundamental right to marriage,” he said.
Even if Proposition 8 supporters went directly to the Supreme Court
and the justices agreed to take the case, they probably would not rush
to hear the case before the court term ends in June.
The appeals panel’s decision upheld a 2010 ruling by former U.S.
District Judge R. Vaughn Walker. All three judges rejected an argument
from Proposition 8 proponents that Walker should have recused himself
from the case because he disclosed after trial that he is gay and had
been in a relationship for 10 years.
The case was brought by two same-sex couples, Kris Perry and Sandy
Stier, and Paul Katami and Jeff Zarrillo.
Besides the District, same-sex marriage is allowed in Connecticut,
Iowa, Massachusetts, New Hampshire, New York and Vermont.
[Staff writer Joshua Hicks contributed to this report.]
http://www.washingtonpost.com/politics/calif-same-sex-marriage-ban-ru...
