Anti-Gay Marriage Measure Struck Down

By Kenneth Jost
Supreme Court Editor, CQ Press
      California voters violated the U.S. Constitution in 2008 when they approved a ballot initiative withdrawing from same-sex couples a judicially recognized right to marry, a federal appeals court ruled on Tuesday in a case likely to reach the U.S. Supreme Court.
      The 2-1 decision by the Ninth U.S. Circuit Court of Appeals in Perry v. Brown stopped short of recognizing an unqualified right to marry for gay and lesbian couples, as gay rights advocates had hoped. Instead, the San Francisco-based court found that California’s Proposition 8 — approved six months after the California Supreme Court had recognized a right to marry under the state constitution — was invalid because it had no legitimate purpose.
      “All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation ‘marriage,’” Judge Stephen Reinhardt wrote in the 80-page majority opinion. “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. The Constitution simply does not allow for ‘laws of this sort.’ ”
      Reinhardt’s opinion, joined by a second Democratic-appointed judge, Michael Daly Hawkins, cited as authority the U.S. Supreme Court’s 1996 decision in Romer v. Evans, which struck down an anti-gay initiative in Colorado. The Colorado measure, Amendment 2, barred the state or local governments from passing laws to prohibit discrimination on the basis of sex orientation. Justice Anthony M. Kennedy, likely to hold a critical vote if the issue reaches the high court, wrote the majority decision finding the measure unconstitutional.
      Dissenting in the Prop 8 case, Judge N. Randy Smith said he would have upheld the ban on same-sex marriage on the grounds urged by supporters of the marriage that it would advance “responsible procreation” and “optimal parenting” of children by opposite-sex couples. “I am not convinced that Proposition 8 lacks a rational relationship to legitimate state interests,” Smith, an appointee of President George W. Bush, wrote.
      Reinhardt, appointed to the bench in 1980 by President Jimmy Carter, has a national reputation as one of the most liberal judges on the federal bench. Hawkins was appointed by President Bill Clinton in 1994.
      If the ruling is upheld, California will become the seventh state along with the District of Columbia to recognize marriage rights for same-sex couples. The other states are Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont. A measure to approve same-sex marriage is awaiting likely final approval in the Washington state House of Representatives; Gov. Christine Gregoire says she will sign the bill if it reaches her desk.
      The impact of the Prop 8 ruling is both limited and likely to be delayed pending further appeals, including to the U.S. Supreme Court. California is the only state to have recognized and then withdrawn marriage rights from same-sex couples. The Maine legislature approved a same-sex marriage bill in 2009, but opponents defeated it by referendum later that year before it went into effect.
      Supporters of Proposition 8 are expected to seek a stay to prevent the ruling from going into effect during further appeals, just as they had requested a stay after the lower court ruling striking down the ballot measure. Lawyers for the gay and lesbian couples who were plaintiffs in the suit said they will oppose a stay, but they had also opposed the earlier stay.
      In the ruling Tuesday, the appeals court panel unanimously agreed that supporters of the ballot measure, individual voters and the organization ProtectMarriage.com, had standing to appeal the lower court ruling. The issue was critical because California Gov. Jerry Brown and Attorney General Kamala Harris declined to defend the measure.
      The appeals court put a hold on its proceedings while asking the California Supreme Court whether a ballot measure sponsor would have standing, as a matter of state law, to represent the state under such circumstances. The state justices said yes, and the federal judges on Tuesday said they were effectively bound by that determination.
      Supporters of the measure can now ask the full Ninth Circuit court to hear the case before an “en banc” panel that would consist of Chief Judge Alex Kozinski and 10 of the court’s other 24 active-service judges, chosen randomly. Or they can appeal directly to the U.S. Supreme Court. Even if the supporters bypass an en banc hearing, the Supreme Court would not hear the case until its next term — which begins in October — and would not rule until sometime in 2013.
      On a second preliminary issue, the three-judge panel was also unanimous in rejecting the Prop 8 supporters’ motion to throw out the ruling by U. S. District Court Judge Vaughn Walker because he is in a long-term same-sex relationship. Walker, who took semi-retired status after his 2010 ruling in the case, publicly confirmed his sexual orientation and his relationship only after the decision.
      In striking down Proposition 8, Reinhardt said the measure did not advance the supporters’ claimed interests in childbearing and parenting because it left unaffected the right of same-sex couples to bear and raise children. He also rejected the supporters’ argument that the measure served the state’s interest in “proceeding with caution” when considering changes to the definition of marriage.
      “To enact a constitutional prohibition is to adopt a fundamental barrier,” Reinhardt wrote. “Such a permanent ban,” he added, “cannot be rationally related to an interest in proceeding with caution.”
      For background, see “Gay Marriage Showdowns,” Sept. 26, 2008, updated Oct. 15, 2010.