- The Washington Times - Tuesday, February 7, 2012

A federal appeals court declared California’s ban on same-sex marriage unconstitutional Tuesday, requiring the state to recognize such unions and setting the stage for a showdown before the Supreme Court.

The three-member panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that Proposition 8, a voter-passed state constitutional amendment affirming that marriage is between one man and one woman, violates 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,” said Judge Stephen Reinhardt, writing for the panel.

Gay-rights advocates hailed the ruling as a historic moment for same-sex couples. A crowd of supporters outside the 9th Circuit Court building in San Francisco, holding signs with messages such as “We All Deserve the Freedom to Marry,” cheered and applauded after the decision was announced.

“Today the United States Court of Appeals has affirmed a simple, fundamental, American truth: how we are born and who we choose to love should not be a basis for discrimination in this country,” said Chad Griffin, president of the American Federation for Equal Rights, which brought the lawsuit against Proposition 8. “That’s all this case is about — not special rights or privileges, just fairness and equality.”

No weddings tomorrow

Even so, California gay couples hoping to say “I do” within the next year or so may find it quicker to fly to Massachusetts. The court stayed its decision from taking effect until Feb. 28 to allow for the appeals process. That stay would be extended automatically if the opposition files for a rehearing with the entire appeals court within 14 days.

Lawyers David Boies and Ted Olson said in a news conference Tuesday that they likely would ask the court to terminate the stay if it is extended.

“It’s been a long time since Proposition 8 was passed,” said Mr. Olson. “Individuals are being denied their constitutional rights every single hour of every single day.”

Opponents quickly reiterated their intention to take the case to the Supreme Court, adding that the ruling by the 9th Circuit — the nation’s most liberal court — came as no surprise.

“As sweeping and wrongheaded as this decision is, it nonetheless was as predictable as the outcome of a Harlem Globetrotters exhibition game,” said National Organization for Marriage President Brian Brown. “We have anticipated this outcome since the moment [of] San Francisco Judge Vaughn Walker’s first hearing in the case. Now we have the field cleared to take this issue to the U.S. Supreme Court, where we have every confidence we will prevail.”

The case marked the first time a federal appeals court has ruled in favor of same-sex marriage. John Eastman, chairman of the National Organization for Marriage, called the issue “the Roe v. Wade of the current generation,” referring to the 1972 Supreme Court decision in favor of abortion.

“Never before has a federal appeals court … found a right to gay marriage under the U.S. Constitution,” said Mr. Eastman, the founding director of the Center for Constitution Jurisprudence at the Claremont Institute. “Today’s ruling is a perfect setup for this case to be taken by the U.S. Supreme Court, where I am confident it will be reversed.”

Future legal issues

Mr. Eastman also noted that the 9th Circuit, known for its left-leaning opinions, is the most overturned circuit court in the nation, and Judge Reinhardt is known as the most overturned judge.

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