The 9th Circuit Court’s 2-1 decision Tuesday to strike down California’s ban on same-sex marriage as unconstitutional could propel the issue to the U.S. Supreme Court.
It also promises to inject marriage politics into an election year during which states from New Jersey to Minnesota to Washington will grapple with the issue of gay citizens’ right to legally marry.
The four remaining GOP presidential nominees, as well as President Obama, oppose same-sex-marriage rights. (Though the president has characterized his position as “evolving.”) But the issue could push the composition of the high court — and its several aging justices — to the forefront of voters’ minds.
“We’ll celebrate this ruling, and then put that momentum toward important battles we’re facing this year,” said Elizabeth Gill, a lawyer with the American Civil Liberties Union of Northern California.
The judges found that California voters violated the rights of their fellow gay residents when they voted in 2008 to rescind same-sex-marriage rights previously upheld by that state’s high court.
White House spokesman Jay Carney, during an afternoon briefing with reporters shortly after the decision was released, declined to comment specifically on the ruling.
But he said this: “The president has long opposed divisive and discriminatory efforts to deny rights and benefits to same-sex couples.”
Opponents of the decision have the options of either asking for the full complement of judges of the 9th Circuit to hear an appeal or appealing directly to the U.S. Supreme Court.
“Our path to the Supreme Court is now very clear,” Andy Pugno, general counsel for the ProjectMarriage.com coalition, said in a prepared statement.
“We will immediately appeal this misguided decision that disregards the will of more than seven million Californians who voted to restore marriage as the unique union of only a man and a woman,” he said.
ProjectMarriage has served as the official proponent of California’s so-called Proposition 8, a successful 2008 ballot initiative that served to reverse a state Supreme Court decision that allowed marriages between same-sex couples.
But a big question remains: Will the U.S. Supreme Court agree to hear a case from a lower court that tailored its decision to a specific state situation and did not rule broadly on gay-marriage rights?
“The question is, why would they deal with this now, when California is under control and there will be many other opportunities to address the issue in the future?” said Neal Devins, law professor and director of the Institute of Bill of Rights Law at the College of William and Mary.
“I actually think the Supreme Court is not going to hear this,” he said, given the narrowness of the circuit court’s decision.
Narrow Decision, Battle Continues
Tuesday’s decision found only that it was unconstitutional for Californians to rescind the marriage rights of one minority group once those rights were given. For a five-month period before voters passed Proposition 8, about 18,000 same-sex couples were legally married in California.
“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 judges in the majority wrote, “the people of California violated the Equal Protection Clause” of the Constitution.
“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,” they wrote.
“The Constitution simply does not allow for ‘laws of this sort,’ ” they wrote, referencing the 1996 landmark case Romer v. Evans, in which the U.S. Supreme Court ruled unconstitutional a Colorado effort to amend its state constitution to prohibit gay people from access to certain legal protections.
The language echoed that of U.S. District Judge Vaughn Walker, who, in 2010, ruled that the Proposition 8 ban violated the U.S. Constitution. But Walker’s decision was seen as much more far-reaching, and Tuesday’s as more carefully tailored.
“If the ruling was as broad as Walker’s,” Devins says, “it would be a decision of national import.”
But, Devins suggests, Judge Stephen Reinhardt, who wrote the decision, “strategically decided to treat it as a California case.”
In the Romer decision, written by Justice Anthony Kennedy, the court found that the Colorado amendment singling out gay people “imposes a broad disability upon those persons alone, forbidding them, but no others, to seek specific legal protection from injuries caused by discrimination in a wide range of public and private transactions.”
Devins argues that the U.S. Supreme Court, and Kennedy, will have ample opportunity to weigh in on the broader issue of gay citizens’ right to marry, given the surfeit of state-based legislative action on the issue, and court appeals involving alleged discrimination under the federal Defense of Marriage Act that bans same-sex marriage.
But the current crop of justices may not be eager to take up the issue. Instead, he suggests, they may wait for a bigger judicial moment similar to Loving v. Virginia, the 1967 landmark civil rights case that ruled unconstitutional Virginia’s ban on marriages between whites and nonwhites.
In case the high court does weigh in, argues Rick Hasen on his Election Law Blog, Reinhardt’s decision was carefully crafted “for an audience of one: Justice Kennedy.”
“By crafting the argument in this way, and making the case that the only reason for passing Prop. 8 was anti-gay animus, Judge Reinhardt has given Justice Kennedy a way to decide the case without embracing a major holding recognizing a right to same sex marriage generally,” writes Hasen, a University of California, Irvine, law professor. “And just like Romer would have paved a way for an affirmance here, a decision from Justice Kennedy along these lines would make it more likely that when the Supreme Court ultimately does face the same sex marriage question, it could rely on Romer and this case in recognizing such a right.”
In The States
Nationally, while surveys show that a majority of Americans now support same-sex marriage, state efforts to both legalize and ban gay marriage are under way.
Washington state is on the brink of joining six other states and the District of Columbia in legalizing same-sex marriage. Meanwhile, voters in North Carolina and Minnesota this year will vote on amendments to their state constitutions that would ban same-sex marriage. Similar constitutional bans are in place in 31 states.
Meanwhile, there are at least eight pending federal lawsuits challenging the federal DOMA prohibition on same-sex marriage — many brought by same-sex couples married in states where their unions are legal. Last year, the Obama administration said it would no longer defend DOMA in court.
“The game has really changed in the last few years because the Obama administration has been looking for ways to get same-sex couples and families some benefits administratively,” says M.V. Lee Badgett, research director of the Williams Institute for Sexual Orientation Law and Public Policy at the University of California, Los Angeles.
Proposition 8 supporters, including Tony Perkins at the Family Research Council, decried Tuesday’s decision and vowed to continue their fight.
The ruling substitutes “judicial tyranny for the will of the people, who in the majority of states have amended their constitutions, as California did, to preserve marriage as the union of one man and one woman,” Perkins said in a statement. “However, we remain confident that in the end, the Supreme Court will reject the absurd argument that the authors of our Constitution created or even implied a ‘right’ to homosexual ‘marriage,’ and will instead uphold the right of the people to govern themselves.”
Meanwhile, in San Francisco, where the decision was issued, John Lewis and Stuart Gaffney, partners for 25 years who married during the state’s brief gay-marriage window in 2008, celebrated.
“We in California have had marriage haves, and marriage have-nots,” Lewis said. “There is no reason that any loving couple should not have the freedom to marry.”