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Back to Section One | Back to Arts & Entertainment
posted Friday, February 10, 2012 - Volume 40 Issue 06
Prop 8 unconstitutional, 9th Circuit confirms
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Prop 8 unconstitutional, 9th Circuit confirms

by Mike Andrew - SGN Staff Writer

Prop 8 - the California ballot measure that took away equal marriage rights for same-sex couples - is unconstitutional, a three-judge panel of the 9th Circuit Court decided on February 7.

The ruling in Perry v. Brown confirms the decision of U.S. District Court Judge Vaughn Walker. In August 2010, Walker found that Prop 8 violated the due process and equal protection clauses of the U.S. Constitution.

The 9th Circuit panel was unanimous in finding that Walker did not need to recuse himself from the case because he is Gay and in a same-sex relationship. They also ruled unanimously that Prop 8 supporters had standing to appeal Walker's decision.

On the main issue - whether Prop 8 did, in fact, violate the rights of same-sex couples - the panel split 2-1.

Judges Stephen Reinhardt, a Carter appointee, and Michael Hawkins, appointed by Bill Clinton, voted to strike down Prop 8. Bush appointee Randy Smith dissented.

In his majority opinion, Reinhardt was blunt.

'On [November4, 2008] the People of California adopted Proposition 8, which amended the state constitution to eliminate the right of same-sex couples to marry,' he wrote.

'We consider whether the amendment violates the 14th Amendment to the United States Constitution. We conclude that it does.

'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 is no such reason that Proposition 8 could have been enacted.'

Reinhardt scornfully dismissed the argument that Prop 8 was meant to advance the state's interest in childrearing, 'for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples.'

'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 symbolizes 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 relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for 'laws of this sort.' Romer v. Evans, 517 U.S. 620, 633 (1996).'

In Romer v. Evans, the U.S. Supreme Court struck down Colorado's Amendment 2, forbidding any government institution in the state from recognizing LGBT residents as a protected class.

In the majority opinion Justice Anthony Kennedy wrote that such anti-discrimination laws do not grant LGBT persons 'special rights.'

'To the contrary,' he wrote, 'the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint.'

Echoing Kennedy, Reinhardt wrote that taking away marriage rights that had previously been recognized by the California Supreme Court 'imposes a special disability' on same-sex couples and therefore violates their rights to due process and equal protection.

What the court did not say
While the 9th Circuit found that same-sex couples may not have their right to marry taken away, they did not find a positive right for same-sex couples to marry. In fact, Reinhardt explicitly steered away from that topic.

'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, is an important and highly controversial question,' he wrote in his opinion.

But, he added, 'We need not and do not answer the broader question in this case&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 the important and legally significant designation, while leaving in place all of its incidents.'

Because of the particular circumstances of the Prop 8 case, Reinhardt said, the court can make a ruling without tackling the bigger issue of whether the 14th Amendment might actually require equal marriage rights for all couples.

What now?
The 9th Circuit left in place the stay on Judge Walker's 2010 ruling pending appeals, meaning that California couples still cannot legally marry.

If Prop 8 supporters wish to appeal, they must follow a specific process. According to the National Center for Lesbian Rights, 'The supporters of Prop 8 have 15 days to ask the Ninth Circuit panel to reconsider its decision or to ask for reconsideration by a larger panel of judges on that court. Alternatively, they have 90 days to request that the Supreme Court of the United States review the case.'

Most legal observers believe that the full 9th Circuit would uphold the panel's decision. In spite of Republican presidential candidate Mitt Romney's statement that 'I expect it to go to the Supreme Court,' many experts have questioned whether the Supreme Court would agree to take the case.

According to NCLR attorney Shannon Minter, the Supreme Court would have to break with its own longstanding practice to take an appeal in the Prop 8 case.

'Given the reasoning of the Ninth Circuit's decision and its focus on the specific circumstances that led to the enactment of Prop 8 in California, it may be a tall order for the supporters of Prop 8 to persuade the Supreme Court to take the case,' Minter said in a statement on February 8.

'The Supreme Court normally only accepts cases when different federal appellate courts have reached opposite conclusions on the same legal issues, or where a decision has broad national implications. The Ninth Circuit's California-focused decision presents neither of those circumstances.'

CNN legal analyst Jeffrey Toobin agreed.

'This might well be the last word on the case,' Toobin said.

'I think the narrow approach in today's decision makes the case less likely to be reviewed by the Supreme Court. The court applies general principles that apply across the United States. Because this case only deals with the unique circumstances in California, I think the Supreme Court is less likely to review it.

'So the good news for same-sex marriage supporters is this decision may mean that a conservative Supreme Court will decide not to take the case.'

Anti-equality groups were outraged by the decision and predicted that the Supreme Court would reverse the 9th Circuit.

'[The] Ninth Circuit Court of Appeals is the most overturned circuit in the country, and Judge Stephen Reinhardt, the author of today's absurd ruling is the most overturned federal judge in America,' NOM said in a statement.

In a 2008 interview with California Lawyer, Reinhardt admitted he 'was a liberal from a very young age. I think I was born that way.'

'The Supreme Court changes the law regularly,' he continued. 'And this Supreme Court - which is the most activist Court there has ever been - is constantly changing the law. So if you really are faithful to the law, you're likely to get reversed because it [the Court] has cut back on rights.'

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