- 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.

Attorneys for Proposition 8 attempted unsuccessfully to remove Judge Reinhardt from the case because his wife, Ramona Ripston, has participated in legal efforts to overturn the measure in her role as head of the Southern California chapter of the American Civil Liberties Union.

Mr. Boies said the Supreme Court may be reluctant to take up the issue of gay marriage within the framework of California’s Proposition 8, owing to the case’s unique facts.

Proponents placed Proposition 8 on the ballot after the California Supreme Court struck down the state’s ban on gay marriage, which meant that same-sex couples were able to marry during the six months before the measure’s passage. Because same-sex marriage was briefly legal in California, the court was able to frame Tuesday’s decision as a California-specific ruling.

Instead of holding that same-sex couples have a fundamental right to marry, Judge Reinhardt argued that voters cannot use the ballot box “to single out a disfavored group for unequal treatment and strip them, without legitimate justification, of a right as important as the right to marry.”

“If proponents of Proposition 8 want to take this to the Supreme Court, they’re taking it with a set of facts which really might not be the most [favorable] set of facts you could have,” Mr. Boies said.

Value fights

The decision quickly got the nation’s top politicians taking sides. Republican presidential front-runner Mitt Romney said the ruling “underscores the vital importance of this election and the movement to preserve our values.”

“I believe marriage is between a man and a woman and, as president, I will protect traditional marriage and appoint judges who interpret the Constitution as it is written and not according to their own politics and prejudices,” the former Massachusetts governor said in a statement.

GOP hopeful Rick Santorum, an outspoken opponent of gay marriage, tweeted that California voters “had their rights stripped away by activist 9th Circuit judges,” and repeated his campaign promise to break up the 9th Circuit and reapportion the state to other courts.

Newt Gingrich tweeted that the ruling is “another example of an out of control judiciary.”

On the other side, House Minority leader Nancy Pelosi, California Democrat, vowed to “continue the fight for the fundamental rights of [lesbian, gay, bisexual and transgendered] couples” and “keep up the charge for change and equality in state legislatures and in the courts, and work in Congress to repeal and overturn the so-called Defense of Marriage Act.”

Conservatives laid blame for the decision in part on Hollywood celebrities, who helped fund the lawsuit. Brian Raum of the Alliance Defense Fund called it a “Hollywood-orchestrated attack on marriage.”

“This Hollywood-funded lawsuit, which seeks to impose San Francisco values on the entire country, may eventually reach the Supreme Court,” said Family Research Council President Tony Perkins. “This ruling substitute’s judicial tyranny for the will of the people, who in the majority of states have amended their constitutions, as California did, to preserve marriage as the union of one man and one woman.”

Gay judge cleared

California voters approved Proposition 8 by a margin of 52 percent to 48 percent. U.S. District Court Judge Vaughn Walker overturned the initiative in 2010, but the ruling was appealed by ProtectMarriage.com, the group that placed the measure on the November 2008 ballot.

In a separate decision, the court refused Tuesday to invalidate Judge Walker’s ruling on conflict-of-interest grounds. Opponents argued that the now-retired judge’s decision should be overturned because he failed to disclose that he was involved in a long-term same-sex relationship and thus stood to benefit directly from his ruling against Proposition 8.

At the time, California Gov. Arnold Schwarzenegger and Attorney General Jerry Brown refused to defend Proposition 8 in court, leaving it to the campaign to hire a legal team and provide a defense after the measure was challenged by the American Federation for Equal Rights.

The three judges on the panel deciding the case were Judge Reinhardt, an appointee of President Carter; Michael Daly Hawkins, an appointee of President Clinton; and N. Randy Smith, appointed by President George W. Bush.

Judge Smith, the sole vote against overturning Proposition 8, filed a dissenting opinion in the case, saying, “I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest.”

Six states and the District of Columbia recognize same-sex marriages. In Washington state, the state Senate recently approved a same-sex marriage bill, and Gov. Chris Gregoire, a Democrat, has said that she will sign it.

Maryland and New Jersey lawmakers also are debating same-sex marriage bills in their legislative sessions. New Jersey Gov. Chris Christie, a Republican, has said he will veto such a bill, while Maryland Gov. Martin O’Malley, a Democrat, is lobbying in favor of same-sex marriage.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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