The Supreme Court will now likely be faced with two ways to consider the issue: the California Prop 8 question and an appeals court decision last week in Boston that ruled unconstitutional the federal Defense of Marriage Act, which withholds federal recognition of same-sex marriages performed in those states where it is legal.
The San Francisco appeals court declined to review the work of a three-judge panel that ruled in February that California’s Proposition 8, which said that marriage could only be between a man and woman, was unconstitutional.
The panel took a narrow route in knocking down the prohibition and did not address whether same-sex couples have a federal constitutional right to marry. That had been the finding of U.S. Judge R. Vaughn Walker after a trial in 2010.
The panel’s decision focused on the fact that gay couples in California for a brief time had the right to marry and that Proposition 8 took that right away.
In 2008, the California Supreme Court ruled 4 to 3 that same-sex couples could not be denied the right to wed, and over the next five months, about 18,000 such couples took marriage vows. But that fall, 52 percent of California voters supported Proposition 8, amending the state Constitution to validate “only a marriage between a man and a woman.”
U.S. Circuit Judge Stephen Reinhardt said this “taking away” of a right by the majority was not allowed.
He based the ruling on the Supreme Court’s 1996 decision in
Romer v. Evans
. It involved an amendment to the Colorado Constitution that prohibited the state or local jurisdictions from outlawing discrimination against gays. The ruling was in response to local governments that had extended such protection.
But the Supreme Court said it was “not in our constitutional tradition” to enact laws that single out “a certain class of citizens for disfavored legal status.”
The Romer decision was also cited last week when the U.S. Court of Appeals for the 1st Circuit ruled that the Defense of Marriage Act is unconstitutional because it denies equal rights for legally married same-sex couples, making it likely that the Supreme Court will consider the politically divisive issue for the first time in its next term.
The unanimous decision by a panel of the U.S. Court of Appeals for the 1st Circuit in Boston was a big win for President Obama, who recently said he supported states allowing gay and lesbian couples to marry.
His administration last year said it would no longer defend the 1996 law, which limits federal recognition of marriage to those between a man and a woman. The law thus denies a host of federal benefits, such as filing joint tax returns or receiving survivor benefits, to same-sex couples who were married in states that allow such unions.
The decision by a panel made up of judges nominated by presidents Ronald Reagan, George H.W. Bush and Bill Clinton did not address whether the Constitution provides gays and lesbians a fundamental right to legal marriage. It also did not address a part of DOMA that says states do not have to recognize same-sex marriages performed elsewhere.
In the Proposition 8 case, four circuit judges publicly dissented from the full court’s decision not to rehear the case.
“We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court,” wrote Circuit Judge Diarmuid O’Scannlain.