Another legal defeat for opponents of gay marriage.
As countless outlets have reported, a federal appeals court in San Francisco Tuesday deemed California’s ban on same-sex marriage unconstitutional, ruling that the state cannot revoke the rights of gays and lesbians to wed simply because a majority of voters disapprove.
After the state Supreme Court ruling in 2008, gay marriage was legal for about five months, until the passage of Proposition 8, (52-48 percent) made it illegal again. It’s been on the losing end of court battles ever since while a stay on gay marriage has remained in place.
The 2-1 decision from a three-member panel of the 9th Circuit Court of Appeals is a major victory for gay rights advocates, but that doesn’t end the legal fight over gay marriage in California. Prop 8 backers will still have the opportunity to appeal the decision to the full 9th Circuit or possibly take it directly to the Supreme Court. They haven’t decided which course to take yet.
If Prop 8 backers take the second option, the Supremes most likely wouldn’t consider the case in their current term, which ends in June. If the justices accepted the case, however, it could schedule oral arguments in the fall.
Will this go to the high court? It’s a bit of a chess match.
The key word in the appellate ruling is “revoke.”
The court focused on a brief 5-month period when gay marriage in California was legal –between the time the State Supreme Court ruled that such a right was protected by the California state constitution and the passage of Proposition 8, which prohibited it. In that time, 18-thousand gay couples married.
Not only did the appellate court rule it unconstitutional for Proposition 8 take that right away, Prop 8’s passage created three classes of people: Legally married heterosexuals, legally married gays, and gays who legally can’t get married. The court saw both as a violation of the Equal Protection Clause.
The court didn’t address whether the Constitution protects the rights of all same-sex couples to marry, and it took care to craft a decision that applies only to California, despite the fact that the federal court has jurisdiction over a total of nine western states. That contrasts the August 2010 decision of U-S District Judge Vaughn Walker who ruled that same-sex couples should have the right to marry nationwide.
Some analysts think this narrower ruling by the 9th Circuit has a better chance of being heard by the higher court. It’s worth noting that Circuit Judge Stephen Reinhardt based his majority opinion on a 1996 Supreme Court decision, Romer v. Evans, which struck down an amendment to the Colorado Constitution that prohibited local governments from enacting anti-discrimination measures that protected homosexuals. In other words, if Littleton, CO, passed an anti-discrimination law protecting gays, the amendment to the state constitution would’ve prohibited that. The Amendment passed. It was challenged in federal court and eventually overturned by the Supreme Court. The ruling so angered conservatives that two religious organizations tried to launch impeachment proceedings against the six justices who voted in the majority.
The person who wrote the majority opinion for Romer? Anthony Kennedy, the court’s swing justice, which some would say means the opinion in the 9th Circuit was aimed specifically at getting his approval. Which means the larger issue of a constitutional right to marry that Judge Vaughn Walker argued in his ruling would have to wait for another day.
However, remember, it takes four justices to agree to hear a case. It’s possible the four conservative members of the high court won’t WANT to hear this case, not because they know how the liberal wing will vote, but they also know how Kennedy will vote. He’s not going to vote against his own opinion in Romer, and the legal principle of stare decisis (the principle of courts upholding previous rulings) often holds sway in the court. So it will take the other justices to agree to hear the case. Of the four conservative justices on the court, only Antonin Scalia and Clarence Thomas were on the bench for the Romer case. Along with then Chief Justice William Rehnquist, they voted in the minority in the Romer case.
One last thing: You may see some concern among conservatives about how current Supreme Court Chief Justice John Roberts might vote if the court decides to hear this case. Roberts has been accused by some of helping the plaintiffs in Romer, “coaching them on what tactics to use when arguing this case before the high court.” The presumption is that he would side with the liberal wing of the high court were it to take the Prop 8 case. That’s inaccurate. Roberts, who was then an attorney and not a judge, participated in what’s called a moot court. A moot court is a simulated court proceeding in which you do a dry run of your oral arguments (as opposed to a “mock trial,” which usually refers to a simulated jury trial or bench trial). Law schools often hold annual Moot Court Competitions, something many justices participate in either as a judge in the proceedings, or as a judge of the competition. John Roberts still does it, but participation in such a court, even in a real case (as opposed to a law school competition) doesn’t mean you support one side or the other in the case. Plaintiffs in the Colorado case told me Roberts gave no indication in their moot court that he had an opinion one way or the other.