SAN FRANCISCO, Calif. California's Proposition 8, the voter-mandated ban against gay marriage, is unconstitutional, the 9th U.S. Circuit Court of Appeals ruled Feb. 7.
"Proposition 8 served no purpose, and had no effect, other than to lessen the status and human dignity of gays and lesbians in California," Judge Stephen Reinhardt wrote in the majority opinion.
In anticipation of the appeals court ruling, gay-rights groups across the state scheduled rallies and marches to celebrate the win. Even with the victory, however, a court-ordered stay will block gay marriages at least until an appeal of the latest decision is heard.
Attorneys with Protect Marriagesponsors of the 2008 constitutional amendment declaring marriage as between one man and one womanare expected to appeal the 2-1 ruling. An appeal could be made to the full panel of the 9th Circuit or go directly to the nation's highest court. If appealed directly to the U.S. Supreme Courta likely scenariothe matter could be heard as early as next year, providing the justices agree to hear the case.
"No court should presume to redefine marriage," said Brian Raum, senior counsel for the Alliance Defense Fund, one of the groups representing Protect Marriage. "No court should undercut the democratic process by taking the power to preserve marriage out of the hands of the people."
Raum added that Americans have consistently rejected the concept of same-sex marriage.
"Sixty-three million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife," he said.
Although a disappointment to supporters of traditional marriage, the ruling was not unexpected. During a hearing on the issue last fall, the three-judge panel appeared to support the arguments of attorneys representing several gay rights couples.
"We are not surprised that this Hollywood-orchestrated attack on marriagetried in San Franciscoturned out this way," the ADF attorney said. "But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court. Every pro-marriage American should be pleased that this case can finally go to the U.S. Supreme Court. The ProtectMarriage.com legal team's arguments align with every other federal appellate and Supreme Court decision on marriage in American history."
California voters approved Proposition 8 in 2008 by a margin of 52-48, but it was immediately challenged by gay-rights supporters.
The new decision upheld the 2010 trial court ruling by then-U.S. District Judge Vaughn R. Walker, declaring Proposition 8 unconstitutional. After he retired in 2011, Walker disclosed that he was gay and in a long-term relationship, prompting Protect Marriage to file a separate suit seeking to toss the verdict citing a conflict of interest. The 9th Circuit appeals court denied the request.
"The 9th Circuit did what it must: it ruled that Judge Walker is competent, not somehow diminished for being gay and it ruled that the Constitution of the United States indeed provides equal protection and due process to all Americans, not just some Americans," Rick Jacobs, chairman and founder of the national gay-rights group Courage Campaign, said after the court struck down the amendment.
In his dissenting opinion, Judge N. Randy Smith, specifically cited procreation and parenting issues, and urged judicial restraint as it pertains to legislative matters.
"Ultimately, I am not convinced that Proposition 8 is not rationally related to a legitimate governmental interest," he wrote. "I must therefore respectfully dissent."
While unsuccessful on the larger question of constitutionality, Protect Marriage was successful on Feb. 2 when the 9th Circuit court ordered the sealing of videotapes Walker made of the original trial. The appellate judges said public release of the court hearings would violate a vow Walker made by assuring attorneys they would remain private. That decision reverses a lower court ruling ordering the tapes be released.
Walker videotaped the trial despite a U.S. Supreme Court ruling blocking the broadcasting of the trial. Most federal trials ban the use of cameras inside the courtroom. But Walker taped the hearings anyway, saying they would only be used for his personal review. After he retired last year, however, Walker took a copy of the video and showed excerpts during a public address.
Imperial County clerk denied right to intervene
In its decision the 9th Circuit court also denied a petition filed by Advocates for Faith & Freedom to intervene on behalf of Imperial County Clerk Chuck Storey and in defense of the law in order to provide a governmental defendant willing to ensure that the case is decided by the higher courts.
Storey said he will now seek an appeal from the U.S. Supreme Court in conjunction with Protect Marriage.
"I took an oath of office to uphold the California Constitution, and Proposition 8 is part of the Constitution," said Storey, whose role includes serving as the Commissioner of Civil Marriage for Imperial County.
Advocates for Faith & Freedom contends that not only was the 9th Circuit in error for denying intervention by the Imperial County Clerk, the decision to overturn Proposition 8 was contrary to long held constitutional principles.
"Twice the voters of California have voted to preserve marriage between men and women, and twice they have been challenged in the Courts. Clerk Storey's action is intended to help ensure that the voice of the people is heard in the courts," said Robert Tyler, General Counsel for Advocates for Faith & Freedom.
"This case is not only important for influencing nationwide law regarding marriage," said Jennifer Monk, Associate General Counsel for Advocates, "but it is also important for the people of California to have their vote respected."