29th January 2005
Court Strikes Down Ban on Gay Marriage in California By ADAM NAGOURNEY
LOS ANGELES – A federal appeals court panel ruled on Tuesday that a voter-approved ban on same-sex marriage in California violated the Constitution, all but ensuring that the case will proceed to the United States Supreme Court.
The three-judge panel issued its ruling Tuesday morning in San Francisco, upholding a decision by Judge Vaughn R. Walker, who had been the chief judge of the Federal District Court of the Northern District of California but has since retired. The panel found that Proposition 8 – passed by California voters in November 2008 by a margin of 52 percent to 48 percent – violated the equal protection rights of two same-sex couples that brought the suit. The proposition placed a specific prohibition in the State Constitution against marriage between two people of the same sex.
But the 2-1 decision was much more narrowly framed than the sweeping ruling of Judge Walker, who asserted that barring same-sex couples from marrying was a violation of the equal protection and due process clauses of the Constitution. The two judges in this case stated explicitly they were not deciding whether there was a constitutional right for same-sex couples to marry, instead ruling that the disparate treatment of couples under California law since the passage of Proposition 8 violated the Equal Protection Clause of the Constitution.
“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 people differently,” Judge Stephen Reinhardt wrote in the decision. “There was no such reason that Proposition 8 could have been enacted.”
“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,” the judge wrote, adding: “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gay men and lesbians in California."
Supporters of Proposition 8 can now ask for a larger panel of the United States Court of Appeals for the Ninth Circuit to take up the case. But they could also choose instead to appeal the case directly to the Supreme Court, setting the stage for a decision by the nation’s highest court on an issue that has roiled legal, political and cultural circles here and across the country.
The decision was the latest victory by same-sex marriage proponents here since losing at the polls four years ago and sets the stage for what backers of same-sex marriage said they were seeking: a fight before the Supreme Court.
“This is a huge day: The United States Court of Appeal for the Ninth Circuit, which represents nine states and certain territories, has decided that Proposition 8 is unconstitutional," said Theodore B. Olson, one of the attorneys representing the American Foundation for Equal Rights, which challenged Proposition 8. Speaking at a news conference here Tuesday morning, Mr. Olson said he was now “very confident” the Supreme Court would uphold this decision and nullify the voter initiative.
Proponents of Proposition 8 expressed disappointment at the decision, but said they were not surprised given the nature of the Ninth Circuit, which they view as a liberal court, and predicted it would fail before the Supreme Court.
“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,” said Andy Pugno, general counsel for the ProtectMarriage.com coalition, the official proponents of Proposition 8. “We will immediately appeal this misguided decision that disregards the will of more than 7 million Californians who voted to restore marriage as the unique union of only a man and woman. We are confident that the rights of California voters will finally win out.”
Mr. Pugno said he was still reviewing the decision and had not yet decided whether he would appeal directly to the Supreme Court or ask a larger panel of the Ninth circuit to review this decision.
The decision, though, was narrowly cast. The judges specifically avoided drawing any grand constitutional right to marriage, unlike the decision by Mr. Walker. Instead, they decided it on narrow grounds, referring to California law and its handling of the rights of domestic partnerships, in a way that might make it difficult to extend the logic of the ruling to other states.
"It's striking that the court - or at least the two judges - went out of their way to define the judgment as narrowly as they could," said Douglas NeJaime, an associate professor at Loyola law school in Los Angeles. He said the narrowness of the decision could influence the Supreme Court to take a road it often favors: issuing narrow and incremental decisions instead of sweeping ones.
"The laws of other states won't be directly impacted," he said.
The judges continued the stay on the decision that had been handed down by Judge Walker,meaning that it will have no immediate effect on the state of play here: Same-sex marriages will not be allowed to commence while the litigation continues.
The judges also upheld a lower-court decision rejecting an effort by supporters of the proposition to have Judge Walker’s decision struck down on the grounds that he is gay and involved in a long-term relationship with another man.
The decision is the latest turn in a tangled battle that has been fought out here for almost 12 years. In the spring of 2008, the California Supreme Court threw out a 2000 voter proposition barring same-sex marriage. Opponents immediately marshaled their forces to get Proposition 8 on the ballot and get it passed. That proposition amended the California Constitution to bar same-sex marriage. During the period when same-sex marriages were legal in the state, nearly 18,000 couples married; their unions remain in place.
Judge Walker ruled in August of 2010 that the ban on same-sex marriage violated the rights of gay men and lesbians. The decision on Tuesday upheld Judge Walker’s ban and reasoning.
The California battle has churned on even as other states – including New York – have moved to legalize same-sex marriage in their Legislatures. Yet it has continued to attract national attention, largely because of California’s size, the state’s large and politically active gay population and the unusual coalition of lawyers who represented the case in court: Mr. Olson, a Republican, and David Boies, a Democrat. Before this, the two lawyers were best known as opponents in the Supreme Court battle over the 2000 election returns in Florida that resulted in George W. Bush becoming president.
Some gay activists have been apprehensive about taking this case to the current Supreme Court, fearful that conservative justices could lead it to codify a ban against same-sex marriage. But Mr. Boies and Mr. Olson have argued that this court would be receptive to the arguments they are making and the changing climate in the land.
John Schwartz contributed reporting from New York, Ian Lovett from Los Angeles.
This article has been revised to reflect the following correction:
Correction: February 7, 2012
A previous version of this article said supporters of Proposition 8 might ask a larger panel of the 11th circuit to review Tuesday’s decision. It would be the Ninth Circuit.
Of course this is not quite over. Regardless of the outcome it would continue to be appealed by the losing end to a higher court. This is one of those that is bound to end up at the supreme court to settle the constitutionality of same-sex marriage bans.