The Romer decision was written by Justice Anthony M. Kennedy, who has been the deciding vote in the high court’s recent decisions supporting gay rights. Reinhardt’s reliance on Romer suggests that the Supreme Court could settle California’s same-sex-marriage issue in an equally narrow way, without confronting whether there is a constitutional right to marry.
In his dissent, Smith said that he did not think the Romer decision mandated the outcome in the current case, and that the proper role for the judiciary is to defer to the view that the proposition advanced “legitimate state interests.”
Reinhardt and Hawkins, however, said the supporters of Proposition 8 proved no legitimate state interests. Because the amendment allowed gay couples all rights except marriage, they said, it “could not have reasonably been enacted to promote childrearing by biological parents, to encourage responsible procreation, to proceed with caution in social change, to protect religious liberty or to control the education of schoolchildren.”
Andrew Pugno, general counsel for the ProtectMarriage.com coalition, which supported Proposition 8, said the panel’s decision was “no surprise.”
“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,” Pugno said.
He said his group has not decided whether to ask the full U.S. Court of Appeals for the 9th Circuit to review the decision, or take the case directly to the Supreme Court.
The attorneys who argued on behalf of gay couples — Theodore B. Olson, who was solicitor general under President George W. Bush, and Democratic lawyer David Boies — said the decision marks a milestone, but they had slightly different takes on whether it would command a Supreme Court review.
Boies said the court might let the narrow ruling stand, because it would affect only marriages in California. He said he thought the court would be “somewhat less likely to take it.”
But Olson noted that although the ruling was narrow, the reasoning behind it was bold. The decision “ringingly reaffirmed the right to equality, the fundamental right to marriage,” he said.
Even if Proposition 8 supporters went directly to the Supreme Court and the justices agreed to take the case, they probably would not rush to hear the case before the court term ends in June.
The appeals panel’s decision upheld a 2010 ruling by former U.S. District Judge R. Vaughn Walker. All three judges rejected an argument from Proposition 8 proponents that Walker should have recused himself from the case because he disclosed after trial that he is gay and had been in a relationship for 10 years.
The case was brought by two same-sex couples, Kris Perry and Sandy Stier, and Paul Katami and Jeff Zarrillo.
Besides the District, same-sex marriage is allowed in Connecticut, Iowa, Massachusetts, New Hampshire, New York and Vermont.
Staff writer Joshua Hicks contributed to this report.