California's gay marriage ban unconstitutional, Court of Appeals rules

The Sacramento BeeFebruary 7, 2012 

SACRAMENTO — In a landmark victory for gay rights advocates, a federal appeals court on Tuesday ruled California's same-sex marriage ban unconstitutional.

A court-ordered stay on gay and lesbian marriages, however, remained in place while proponents of Proposition 8, the ballot measure outlawing same-sex marriages, prepare to appeal.

In a 2-1 decision, a panel of the 9th U.S. Circuit Court of Appeals issued withering criticism of an electorate the court said used its "initiative power to target a minority group and withdraw a right that it possessed," violating the U.S. Constitution's guarantee of equal protection.

"Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California," Judge Stephen Reinhardt wrote for the majority, "and to officially reclassify their relationships and families as inferior to those of opposite-sex couples."

The case has long been thought destined for the U.S. Supreme Court. It may still be, though the narrow grounds on which the appeals court ruled Tuesday - focusing on California law and ignoring the broader question about whether same-sex couples may ever be denied the right to marry - cast doubt over the prospect.

"One possible reaction to this opinion is that it is limited to the unique California history," said Courtney Joslin, a law professor at University of California, Davis, "and because of that the court might feel that there's less of a need to grant review."

The ruling cheered supporters across the state.

In Sacramento, California Gov. Jerry Brown said in a written statement, "The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision." Meanwhile, at a news conference in Los Angeles, Paul Katami, a plaintiff in the case, introduced his partner, Jeff Zarrillo, as his "husband to be."

In a dissenting opinion, Judge N. Randy Smith argued for judicial restraint when intervening in legislative matters.

Smith, who was appointed by President George W. Bush, is considered more conservative than Reinhardt and the judge who joined him in the majority, Michael Daly Hawkins, both of whom were appointed by Democrats.

Proponents of Proposition 8 said they had not yet decided whether to appeal directly to the U.S. Supreme Court or first request a review by a larger panel of the appeals court.

"Either way, one way or the other, the case will continue on," said Folsom lawyer Andy Pugno, the author of Proposition 8. "This case is all about the rights of the voters to make a decision on an important public policy matter vs. one or two judges substituting their opinions for the will of the voters."

The case could reach the Supreme Court next year, though it is unclear if the court will take it up.

Unlike in many other states, gay and lesbian people in California could briefly wed, and thousands of couples did during about five months following a state Supreme Court ruling and before Proposition 8's passage in 2008.

In a ruling far narrower than the one it upheld - the sweeping rebuke of Proposition 8 by U.S. District Judge Vaughn R. Walker in 2010 - the appeals court ruled California erred in stripping gay and lesbian people of a right they previously enjoyed.

The appeals court did not, significantly, consider the broader question of whether gay and lesbian couples may ever be denied the right to wed.

Legal scholars said the ruling's focus on circumstances specific to California could render less likely a review by the nation's precedent-setting highest court.

"Less likely," said Vik Amar, a law professor at the University of California, Davis, "but that's different than unlikely."

Amar said, "The chance of Supreme Court intervention is still quite significant."

If the Supreme Court does take up the case and rules on the constitutionality of gay marriage, many legal scholars believe the court would be closely divided, the outcome uncertain.

The ban's proponents, ProtectMarriage.com, carried the appeal of Walker's ruling forward after Brown, then attorney general, and then-Gov. Arnold Schwarzenegger declined to defend the gay-marriage ban in court. The California Supreme Court ruled in November that proponents of ballot initiatives could defend the measures themselves in such cases, a position with which the appeals court agreed.

But on the central issue of the case, the court only disappointed Proposition 8 supporters.

"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," Reinhardt wrote.

He said "laws may be repealed and new rights taken away if they have had unintended consequences or if there is some conceivable affirmative good that revocation would produce." But in the case of same-sex marriage, Reinhardt wrote, there was none.

"A preference for the way things were before same-sex couples were allowed to marry, without any identifiable good that a return to the past would produce," he wrote, "amounts to an impermissible preference against same-sex couples themselves, as well as their families."

The appeals court panel also rejected a bid by Proposition 8 supporters to dismiss Walker's ruling because the judge, who has since retired, did not disclose that he is gay and was in a long-term same-sex relationship.

Brian Raum, a lawyer for the Arizona-based Alliance Defense Fund, a supporter of Proposition 8, said in a prepared statement, "We are not surprised that this Hollywood-orchestrated attack on marriage - tried in San Francisco - turned out this way. But we are confident that the expressed will of the American people in favor of marriage will be upheld at the Supreme Court."

In the Sacramento area, Dave Leatherby, who donated about $20,000 to support Proposition 8, said, "I'm a compassionate person but anything that stifles creation cannot be of God."

Gay rights activists and Proposition 8 opponents said the decision is a historic one. Shelly Bailes and Ellen Pontact are married and live in Davis. But the two women wanted to be with friends when the decision was announced and gathered at the Sacramento Gay & Lesbian Center in midtown.

The women each wore pins that read "overturned."

"This means the fight is coming to an end," said Pontact, 70.

She said when she and Bailes met 38 years ago, they had to hide their relationship. They married June 16, 2008.

Bailes, 70, said she was overwhelmed when she heard the court's decision.

"Look how far we've come," she said. "We're not done yet, but now we can see the finish line."

Shara Murphy, executive director of the Sacramento Gay & Lesbian Center, said same sex marriage is a civil rights issues and supporters ought to keep fighting.

Murphy held up her wedding photo during a news conference. She is black, her husband is white. Murphy said there was a time when their marriage would have been illegal.

"I'm so very proud to be a part of what is going on today," she said. "This is the civil rights issue of our generation."

To read more, visit www.sacbee.com.

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