A federal appeals panel in San Francisco ruled Tuesday that California’s Proposition 8 — banning same-sex marriage — is unconstitutional, a decision that could lead to the Supreme Court’s consideration of the controversial social issue.
By a 2-1 vote, the panel overturned the proposition, which was approved by 52 percent of the state’s voters in 2008 and 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,” wrote U.S. Circuit Judge Stephen Reinhardt. “The Constitution simply does not allow for laws of this sort.”
Reinhardt, a Jimmy Carter appointee 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.
The court took a narrow route in knocking down the same-sex marriage ban and did not address the issue of whether the Constitution protects the rights of all same-sex couples to marry.
Instead, it focused on the fact that same-sex couples in the state for a brief time had the right to marry and that Proposition 8 took that away. About 18,000 same-sex couples married during a five-month period after the California Supreme Court found such a right in the state constitution and before Proposition 8 passed.
“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.
“We hold Proposition 8 to be unconstitutional on this ground.”
He based the ruling on the Supreme Court’s 1996 decision in Romer vs. Evans, which invalidated an amendment to the Colorado Constitution that prohibited any level of government from enacting anti-discrimination measures that protected homosexuals. The constitutional amendment came after local governments in the state passed laws prohibiting discrimination.
“It’s no surprise that the 9th Circuit’s decision is completely out of step with every other federal appellate and Supreme Court decision in American history on the subject of marriage,” said Andrew Pugno, general counsel for the coalition. “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.”
Former Bush administration Solicitor General Theodore Olson, who represented the two same-sex couples named in the lawsuit, countered that “today, we are more American because of this decision.”
“This case is about equality and freedom and dignity and fairness and decency,” Olson said. “It’s about whether we’re going to eliminate government discrimination.”
Same-sex marriages in California are not likely to resume until the appeals process is completed. Proposition 8 proponents may ask the full U.S. Court of Appeals for the 9th Circuit to review the decision or take it directly to the U.S. Supreme Court.
If they take the second option, the justices most likely would not consider it in their current term, which ends in June. If the justices accepted the case, however, oral arguments could be scheduled in the fall.
The appeals panel’s decision upheld a 2010 ruling by former U.S. District Judge R. Vaughn Walker. The panel rejected a motion that Walker should have recused himself from the case because he disclosed after trial that he was gay and had been in a relationship for 10 years.
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.”
The case was brought by two same-sex couples: Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo.
The case had received outsized attention because the lead lawyers representing the couples are Olson and Democratic lawyer David Boies. The two men were on opposite sides in a historic Supreme Court case, Bush vs. Gore. While a majority of states have similar constitutional amendments banning same-sex marriage, six states plus the District of Columbia allow such unions: Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and New York.
