Appeals court rules Proposition 8 unconstitutional

by Anthony Glassman

San Francisco--Repeatedly citing a 1996 Supreme Court decision striking an anti-gay amendment to Colorado�s state constitution, a three-judge panel of the Ninth Circuit Court of Appeals upheld a lower court ruling that Proposition 8 is unconstitutional.

Two of the three judges agreed on the February 7 ruling, which upheld U.S. Judge Vaughn Walker�s August 2010 decision, and dismissed claims that he should have recused himself from the case because he is gay, in a long-term relationship and not married.

Walker�s successor as the chief judge for the federal district had already ruled against the claim that he should have recused himself.

The court did, however, rule that the original proponents of Prop. 8, which barred the same-sex marriages mandated by the California Supreme Court in 2008, could defend the amendment in court, since then-Gov. Arnold Schwarzenegger and California Attorney General Jerry Brown, now governor, refused to do so.

The 1996 Evans v. Romer decision found that constitutional rights could not be taken away from a narrow group simply because the majority felt animus towards them. Instead, there must be a compelling reason for it.

The anti-marriage side argued both that children fare better in households with opposite-sex parents, and also that heterosexual couples can conceive children without intending to, and therefore should be allowed to marry. Since same-sex couples can�t �accidentally� have children, they opined, there is no reason for them to get married.

�Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently,� the court wrote in its opinion. �There was no such reason that Proposition 8 could have been enacted. Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only. It stripped same-sex couples of the ability they previously possessed to obtain from the state, or any other authorized party, an important right--the right to obtain and use the designation of �marriage� to describe their relationships.�

�Proposition 8 serves no purpose, and has no effect in California, 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. The Constitution simply does not allow for laws of this sort,� the opinion by Judge Stephen Reinhardt reads.

�The people may not employ the initiative power to single out a disfavored group for unequal treatment and strip them, without a legitimate justification, of a right as important as the right to marry.�

The court�s ruling also pointed out that this case, like Romer, did not revolve around LGBT citizens being stripped of a federal right.

�In Romer, Amendment 2 deprived gays and lesbians of statutory protections against discrimination. Here, Proposition 8 deprived same-sex partners of the right to use the designation of �marriage.� There is no necessity in either case that the privilege, benefit, or protection at issue be a constitutional right,� the court wrote, excusing itself from deciding whether there is a constitutional right to marriage.

The court left the stay of the decision in place that kept same-sex marriages from again being performed in the state. If the Proposition 8 proponents do not appeal the ruling, the stay will lapse and marriages will r�sum� in California.

However, the Prop. 8 supporters have said that they will appeal to the Supreme Court, rather than take it to the entire Ninth Circuit Court of Appeals for an en banc hearing.

The sole dissenting vote on the panel was that of N. Randy Smith, a George W. Bush appointee. Reinhardt is a Carter appointee, and Michael Daly Hawkins was appointed by Bill Clinton.