Today (Feb. 7, 2012), the 9th Circuit Court of Appeals ruled that Proposition 8, which amended the California Constitution to define marriage as a union between a man and a woman, is unconstitutional. A 3-judge panel voted 2-1 that Prop 8 violated the equal protection clause on the grounds that it took away the existing right to marry from same-sex couples without a rational basis.
The Court first held that the proponents of Prop 8 had legal standing to defend its constitutionality. The Court then held that Judge Walker, the trial court judge, was correct in deciding that he did not have an obligation to recuse himself (pass the case off to another judge) because he is a gay man.
The majority opinion, written by Judge Stephen Reinhart (who was a guest lecturer in one of my law school classes), was fairly limited in scope. The Court ruled that Prop 8 is unconstitutional on equal protection grounds because it took away an existing right for same-sex couples to marry, but it did not reach the broader constitutional issues of whether there is a fundamental right for same sex couples to marry and whether it is a violation of equal protection in all cases to deny same-sex couples the right to marry. Judge Smith dissented, finding that there were two rational bases for Prop 8, “responsible procreation” and “optimal parenting”, and thus it did not violate equal protection.
The decision was not only made on limited legal grounds, but its scope was limited to California and the existing stay was preserved pending further appeals. The case will now be appealed either to an en banc panel of the 9th Circuit (11 Judges) or directly to the US Supreme Court. The 9th Circuit and Supreme Court have discretion to review the case or deny review. Had the Court ruled more broadly that denying same-sex couples the right to marry violated the equal protection clause or that there was a fundamental right for same sex marriage conferred by the due process clause, it would be very likely to be heard by the Supreme Court. The narrow ruling, in my opinion, decreases the likelihood that the Supreme Court will grant review, but I still believe it is more likely than not.
As it stands, the Supreme Court has 4 members who are very likely to affirm the ruling (Kagan, Sotomayor, Ginsburg, and Breyer) and 3 who are very likely to vote to overturn the ruling (Scalia, Alito, and Thomas). I believe there are 2 swing votes -- Chief Justice Roberts and Justice Kennedy, though many people believe Justice Roberts is likely to vote to overturn. I believe he is more of a swing vote because he will be taking a long view of how his tenure as Chief Justice will be viewed by history, and I believe he understands that a ruling against same-sex marriage would eventually be overturned and become known as an aberrant opinion. Depending on whether the case is heard by an en banc panel of the 9th Circuit, the Supreme Court would not decide the case until the Fall term of 2013 at the earliest.
Time is likely to be a factor supporting this opinion. When the Supreme Court in Loving v. Virginia decided that it was unconstitutional to ban inter-racial marriage, approximately 30 states allowed inter-racial marriage with only 20 prohibiting it. Today, only 6 states and the District of Columbia have legalized same-sex marriage. In the near term, we hope Washington, Maryland, Maine and New Jersey will legalize same-sex marriage. Other states like California, Illinois and Oregon have the potential to legalize same-sex marriage by the time the Supreme Court rules, and public opinion is for the first time in favor of same-sex marriage, which is another positive factor.
Equality Ohio will continue to advocate for full equality for the lesbian, gay, bisexual and transgender community, including the freedom to marry. We know that the work we do on the ground in Ohio to change hearts and minds will not only benefit those who live in Ohio, but also shift the national conversation on marriage equality.
Below are some of the important excerpts from the case:
“Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently. There was no such reason that Proposition 8 could have enacted.” (page 4)
“Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing 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 parent’s rights to control their children’s education; it could not have been enacted to safeguard these liberties.” (page 5)
“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 of ‘marriage.’ which symbolized state legitimization and societal recognition of their committed relationships. 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 relations and families as inferior to those of opposite-sex couples.” (page 5)
“Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, in an important and highly controversial question. . . . We need not and do not answer the broad questions in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.” (page 6)
“The district court held a twelve-day bench trial, during which is head testimony form nineteen witnesses and, after giving the parties a full and fair opportunity to present evidence and argument, built an extensive evidentiary record.” (page 17)
“Plaintiffs and Plaintiff-Intervenor San Francisco also offer a third argument: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violations because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Because the third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us whiles the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional questions on the narrowest ground available, we consider the third argument first . . . .” (page 33-34)
“[W]e emphasize the extraordinary significance of the official designation of marriage. That designation is important because marriage is the name that society gives to the relationship matters between most between two adults. A rose by another name may smell as sweet, but to couple desiring to enter into a committed lifelong relationship, a marriage by the name of registered domestic partnership does not. . . . It is the designation of marriage itself that expresses validation, by the state and the community, and that serves as a symbol, like a wedding ceremony or a wedding ring or something profoundly important.” (pages 36-37)
“[W]e first consider four possible reasons offered by Proponents or amici to explain why Proposition 8 might have been enacted: 1. Furthering California’s interest in childrearing and responsible procreation. 2. Proceeding with caution before making significant changes to marriages. 3. Protecting religious freedom 4. Preventing children from being taught about same-sex marriage in schools. . . . Because Proposition 8 did not further any of these interests, we conclude that they cannot have had a rational basis for this measure.” (pages 55-56)
“Absent any legitimate purpose for Proposition 8, we are left with ‘inevitable inference that the disadvantage imposed is born of animosity,’ or, as is more lively with respect to Californians who voted for the Proposition, mere disapproval of, ‘the class of persons affected.’” (page 72)
“The district court properly held that it had jurisdiction to hear and deny the motion under Fed. R. Civ. P. 62.1 (a), that the motion was timely, and that Chief Judge Walker had no obligation to recuse himself under wither 455(b)(4) or 455(a) or to disclose any potential conflict. As Chief Judge Ware explained, the fact that a judge could be affected by the outcome of a proceeding [,] in the same way the other members of the general public would be affected, is not a basis for either recusal or disqualification under Section 455(b)(4.).” (page 78)
“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. We hold Proposition 8 to be unconstitutional on this ground.” (pages 79-80)
“The stay pending appeal issues by this court on August 16, 2010 remains in effect pending issuance of the mandate.” (page 80, footnote 27)