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Ban on gay marriage struck down (FINAL UPDATE)

(FINAL UPDATE 3:34 p.m.)

In the nation’s most closely watched gay rights case, the Ninth Circuit Court divided 2-1 on Tuesday and struck down “Proposition 8,” the ban on same-sex marriage adopted by California voters in November 2008.  The panel majority did not uphold a broad right of gay couples to wed, saying it was enough for now to rule that it was unconstitutional to take away a right to marry only for one minority group, when everyone had the right before.   The 128-page ruling can be read here.

The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but it also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.

The majority summed up its ruling this way: “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].  We hold Proposition 8 to be unconstitutional on this ground.”

It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to conclude that the People of California may not, consistent with the Federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the State and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgment of the district court is affirmed.”

The opinion contained frequent references to a 1996 Supreme Court ruling, Romer v. Evans, which ruled unconstitutional a state constitutional amendment in Colorado that took away from gays and lesbians political rights that they had shared with other citizens.  The Romer decision was written by Justice Anthony M. Kennedy, who very likely would hold a pivotal vote on same-sex marriage if and when that issue reaches the Supreme Court.  Kennedy was also the author of a broader gay rights ruling in 2003, Lawrence v. Texas; there, the Court ruled that gays and lesbians have a constitutional right of privacy to engage privately in sexual activity by consent among adults.  That Kennedy opinion, though, said the Court was not taking a position then on same-sex marriage.

By fashioning what it considered to be a narrow ruling, the Circuit Court went some distance toward insulating its ruling from being overturned either by the en banc Circuit Court or by the Supreme Court.  However, because it assures a renewed right to marry in the nation’s most populous state, the ruling will be viewed at all levels of the court system as at least a partial assurance of equality to join in a revered social institution — one that many conservative observers believe to be under major stresses of modern life.

The Circuit Court said its ruling would remain on hold until it issued the formal mandate to put the ruling into effect.  In the meantime, the proponents of Proposition 8 have the option of asking the full Ninth Circuit Court to reconsider en banc Tuesday’s ruling, or they could seek to go directly to the Supreme Court to challenge the decision.  It would be up to the Supreme Court to decide whether to take on the controversy.

Circuit Judge Stephen R. Reinhardt, perhaps the federal judiciary’s most liberal member, wrote the 80-page majority ruling, joined by Senior Circuit Judge Michael Daly Hawkins.  Circuit Judge N. Randy Smith dissented on the marriage issue, concluding that Proposition 8 had valid reasons behind it.  Judge Smith, though, did join in the other parts of the panel ruling.

For many years, California had laws confining marriage to a man and a woman, although in recent years it had extended many of the legal benefits of marriage to gay couples who formed so-called “domestic partnerships.”  In 2008, however, the California Supreme Court ruled that it violated the state constitution to exclude gay couples from marrying as a legal option.   As a result, some 18,000 gay couples got married in the state.

Before that year was out, the opponents of such marriages pushed and won enactment of a state constitutional amendment, through approval of Proposition 8 in November 2008.   That was challenged in state courts, but the California Supreme Court upheld it under the state constitution in 2009, while at the same time ruling that the 18,000 existing gay marriages were legally valid.

That led two same-sex couples, seeking to wed, to challenge Proposition 8 under the federal Constitution.  That was the case in which U.S. District Judge Vaughn R. Walker in August 2010 struck down the measure, under the Equal Protection and Due Process Clauses, in a decision that was considerably broader in scope that Tuesday’s decision in the Circuit Court.

State officials of California, opposing the measure, had refused to defend it in court.  That task then was taken up by the official proponents of Proposition 8, and, after losing in Judge Walker’s court, they took the issue on to the Ninth Circuit.

In Judge Reinhardt’s explicit effort to keep the decision narrow, the majority opinion stressed that same-sex couples had all of the legal rights as opposite-sex couples — before Proposition 8 was enacted.  Thus, it concluded, the ballot measure “had one effect only” — that is, “it stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right — the right to obtain and use the designation of ‘marriage’ to describe their relationships.  Nothing more, nothing less.”

As a result, Reinhardt wrote, the ballot measure “could not have been enacted to advance California’s interests in child rearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.  Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.”

The ballot measure, the opinion added, “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.'”  (That quotation was taken, the opinion noted, from the Supreme Court’s Romer v. Evans ruling.)

Reinhardt noted that “broader issues have been urged for our consideration,” but he said the panel need not decide those.  California already had extended the same marriage rights to same-sex couples and Proposition 8 merely took those away.  “This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrower grounds.”

It added, though, that if it could not have decided the case on that narrower basis, “we would not hesitate to proceed to the broader question — the constitutionality of denying same-sex couples the right to marry.”   The opinion noted that that is “an important and highly controversial question,” and was now a matter of great debate in the nation.

In dissent, Judge Smith argued that the Supreme Court’s Romer decision did not control the outcome in this case.  He went on to conclude that California had sufficient interests to justify the enactment of the same-sex marriage ban: steering childbearing into the realm of marriage among couples biologically capable of having a child together, and promoting strong parenting by providing for children to be born into the more stable relationship of such marriages.  He credited the arguments of the backers of Proposition 8 that their measure would further those interests sufficiently to justify its enactment.

The Smith dissent thus provides a basis for more conservative judges on higher courts to decide differently than the panel majority did.


Recommended Citation: Lyle Denniston, Ban on gay marriage struck down (FINAL UPDATE), SCOTUSblog (Feb. 7, 2012, 1:06 PM),