Proposition 8 ruled unconstitutional: On to the Supreme Court?

February 7, 2012

California’s Proposition 8, a ballot initiative that limited the definition of marriage to a man and woman, was ruled unconstitutional by a federal appeals panel Tuesday. As Robert Barnes reported:

A federal appeals panel in San Francisco ruled Tuesday that California’s Proposition 8 banning same-sex marriage is unconstitutional, a decision that could lead to the Supreme Court’s consideration of the controversial social issue.

By a 2 to 1 vote, the panel overturned the proposition, which was approved by 52 percent of the state’s voters in 2008 and amended the state’s Constitution to limit marriage to a man and a woman.

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,” wrote U.S. Circuit Judge Stephen Reinhardt. “The Constitution simply does not allow for laws of this sort.”

Reinhardt, a Jimmy Carter appointee considered one of the nation’s most liberal appellate judges, was joined by Judge Michael Daly Hawkins, appointed by President Bill Clinton. Judge N. Randy Smith, a conservative appointed by President George W. Bush, dissented.

The court took a narrow route in knocking down the same-sex marriage ban, and did not address the issue of whether the Constitution protects the rights of all same-sex couples to marry.

Instead, it focused on the fact that same-sex couples in the state for a brief time had the right to marry, and that Proposition 8 took that away. About 18,000 same-sex couples married during a five-month period after the California Supreme Court found such a right in the state constitution and before Proposition 8 passed.

“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 people of California violated the Equal Protection Clause” of the federal Constitution, Reinhardt wrote.

Some analysts see the ruling as a break for President Obama, who had been caught between gay rights and conservative activists on the issue. As Greg Sargent wrote:

So here’s an interesting angle on the decision: Gay rights advocates are hoping that this increases pressure on Obama to come out and unequivocally declare his support for gay marriage. He has said his position on it is “evolving.”

But one expert I spoke to points out that in fact, Obama has caught a pretty big break on this topic. That’s because the court’s ruling was narrow, and in effect actually affirms Obama’s position.

According to Richard Socarides, a prominent gay rights advocate, the key to the ruling is that it didn’t pronounce gay marriage a right under the U.S. Constitution. That broader ruling is what advocates had hoped for — and Obama would have been expected to declare agreement with it.

Rather, Socarides notes, the court today simply affirmed that you can’t take away by referendum a right to marry that citizens already enjoy under state law. And this is consistent with Obama’s position on Prop 8.

“We were hoping for a very broad ruling that held that there was a right under the Constitution to same sex marriage,” Socarides tells me. “If the court had ruled on those grounds, there would have been more pressure for him to move forward with his evolution on this.”

Reactions to the news came quickly from Proposition 8 supporters and detractors. AP collected some the responses from across the country:

“When Proposition 8 doesn’t allow parents like mine to marry, it isn’t just defining their love as taboo or wrong. It says that our family, that my brothers, that my mothers, shouldn’t belong, and we don’t get to be the same as in my friend’s families. With this ruling, in the eyes of the government, my family is finally normal.” Spencer Perry, son of plaintiffs Kris Perry and her partner Sandy Stier, who sued to overturn the gay marriage .

“The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision.” Calif. Gov. Jerry Brown

“We are not surprised that this Hollywood-orchestrated attack on marriage — tried in San Francisco — turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court.” Brian Raum, senior counsel for the Alliance Defense Fund, a Christian legal aid group that helped defend the ban.

More from The Washington Post

Excerpts from the ruling declaring Prop. 8 unconstitutional

Bishop of Episcopal diocese calls for marriage equality in Maryland

Prop. 8 ruled unconstitutional: Celbrities react

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