The debate over the constitutionality of Proposition 8—the 2008 California ballot initiative that bans gay marriage—has been ongoing and heated, with both sides volleying arguments and appeals back and forth.
On Feb. 7, the issue inched a step closer to the U.S. Supreme Court when a federal appeals court ruled the ban unconstitutional because it “serves no purpose other than to lessen the status of human dignity of gays.”
In August 2010, Northern California district judge Vaughn Walker ruled that Proposition 8 denying same-sex couples the right to marry is unconstitutional. The three-judge panel of the U.S. Court of Appeals for the 9th Circuit upheld Walker’s decision with a 2-1 ruling.
The panel made it clear that its decision wasn’t a ruling about whether gays should have the right to marry in California; rather, the ruling was to decide whether the California Constitution grants voters the right to pass Proposition 8. The appeals court focused its decision on the ban as it applies to California, not the greater debate of legalizing gay marriage.
In this most recent ruling, the panel had to decide three things: whether proponents of Proposition 8 have a legal right to defend the ballot measure; if former district judge Vaughn Walker should have recused himself from the case after revealing a long-term relationship with another man; and whether Walker was correct in his ruling Proposition 8 unconstitutional.
In its ruling, the panel majority stated that Proposition 8 serves no purpose and has no effect. The panel said “the Constitution simply does not allow for laws of this sort.” The ruling also stated that Walker should not have been obligated to remove himself from the case.
There are currently six states that allow gay marriage: Iowa, New York, New Hampshire, Connecticut, Massachusetts, and Vermont. The District of Columbia does, too. With more than 98,000 same-sex couples (that the state is aware of), California would be the biggest victory in the same-sex marriage debate.
The ProtectMarriage.com coalition, the official proponents of Proposition 8 who were assigned to represent the state’s interest in upholding the initiative, have requested that the entire 9th Circuit Court of Appeals review the 2-1 decision.
“After careful consideration, we determined that asking for reconsideration by the full 9th circuit is in the best interests of defending Prop. 8,” said Andy Pugno, general counsel for Proposition 8’s proponents. “This gives the entire 9th circuit a chance to correct this anomalous decision by two judges overturning the vote of seven million Californians.”
The 9th circuit will review both sides of the argument before taking a vote on whether to review the decision. According to Stanford Law Professor Jane Schacter, a majority of the circuit’s 25 actively serving judges must agree to reconsider the case. At that point, the case would be assigned to a panel of 11 randomly selected judges.
“If the 9th circuit as a whole declines to rehear the case en banc, the defenders of Prop. 8 can appeal to the United States Supreme Court,” Schacter said. “It’s another procedural opportunity they have, so why pass it up?”
If the 9th circuit does decide to hear it en banc, the side that loses that decision can seek Supreme Court review, and it will be up to the Supreme Court whether to take the case or not.
Schacter said that perhaps Proposition 8 backers believe a ruling by a larger appeals court would result in a decision more likely to pique the interest of the Supreme Court. It’s also possible that Proposition 8 defenders could try to delay Supreme Court review until after the upcoming election, which could work in their favor should a Republican president be elected to office.
For the lesbian, gay, bi, and transgender (LGBT) community, this recent decision is yet another victory and a sign of hope.
“The LGBT community is thrilled about the 9th circuit ruling. It was very focused, and we are hopeful that the case will continue to be successful at the federal level,” said Meredith Munn, LGBT advocacy coordinator for the Pacific Pride Foundation.
Munn did said the 9th circuit isn’t bound by any set dates or time constraints, and all the options for appeal must be exhausted before the state can resume same-sex marriages.
“It will be a long process and can last up to more than a year,” Munn said.
Whether the full 9th circuit panel will overturn the ruling is hard to say.
“The first question is whether a majority of judges on the 9th circuit even want to rehear it,” Schacter said. “If they do, they could disagree with the panel, strike down Prop. 8 on a different constitutional basis, or agree with the panel’s original ruling.”
Schacter did note that the 9th circuit rarely reverses the decisions of its member judges.
Either way, proponents of Proposition 8 think it’s important that the full 9th circuit has an opportunity to consider the appeal.
“The people of California deserve to have their vote on marriage defended before the full appeals court. The panel’s ruling mischaracterized the purpose of marriage,” added Brian Raum, a member of the Proposition 8 legal defense team.
If the defenders of Proposition 8 hadn’t sought reconsideration, the three judges could have ordered that the ruling take effect in seven days. However, same-sex marriage in California will remain on hold until the appeals process has been exhausted.
Despite the impending wait, opponents of Proposition 8 feel the state is moving in the right direction.
“This ruling is a historic milestone in achieving full equality for all Americans,” U.S. Rep. Lois Capps said in a press release. “This further confirms what so many Americans have known for some time now—that marriage is a fundamental right which cannot be denied to gay and lesbian couples.”
Contact Staff Writer Kristina Sewell at ksewell@santamariasun.com.
This article appears in Mar 1-8, 2012.