Tag Archives: Prop 8

Full 9th Circuit opts not to reconsider panel’s ruling that Calif. marriage ban is unconstitutional; case now likely headed for Supreme Court

LISA KEEN  |  Keen News Servic

A glimmer of politics showed through Tuesday when the full 9th U.S. Circuit Court of Appeals declined a request from supporters of California’s ban on same-sex marriage to review a three-judge panel’s ruling that Proposition 8 is unconstitutional.

In a dissent from the order refusing to have the full 9th Circuit hear the landmark Perry v. Brown case, three judges signed onto a dissent, noting that just a few weeks ago, President Barack Obama had “ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter.” The three said the refusal to review the circuit panel’s decision “silenced” President Obama’s suggestion that the nation continue its “conversation” about same-sex marriage “in a respectful way.”

All three dissenters were appointees of Republican presidents.

But politics or not, the refusal to give Perry v. Brown full circuit court review is a major victory for supporters of marriage equality and means almost certainly that the “final chapter” in the historic litigation can now begin, said Chad Griffin, co-founder of the American Foundation for Equal Rights, which organized and funded the lawsuit.

Attorneys for Proposition 8 supporters said they will now file a petition to the U.S. Supreme Court to review the 9th Circuit decisions. Ted Olson, a lead attorney for the gay couples in Perry, said that, even if the Supreme Court refuses to hear that appeal, the litigation would be a “complete victory” for the plaintiff couples.

One looming question for the Perry case is whether the Supreme Court, if it accepts the case, would review the 9th Circuit panel’s very narrow reasoning to strike down Proposition 8 — or the federal district court’s more sweeping reasoning concerning equal protection, due process and the fundamental right to marry. While Olson said upholding a narrow reasoning might still affect same-sex marriage in some states beyond California, upholding the broader reasoning could affect every state.

With last week’s 1st Circuit decision striking a core section of the Defense of Marriage Act also heading to the nation’s highest court, it is now likely the Supreme Court will have two major same-sex marriage cases on its docket in October.

The 9th Circuit case, if accepted, could ask whether states can take away the right to marry from same-sex couples or whether same-sex couples have a fundamental right to marriage and to be treated equally under marriage laws. The 1st Circuit case, if accepted, would ask whether the federal government can refuse to recognize marriages licensed by states to same-sex couples.

David Boies, the other lead attorney for the Perry couples, said that, while the questions in the two cases are “distinct,” the issues are closely related and could — if both are accepted — be heard very close together.

The three-paragraph order June 5 stated that the request for a full court review “failed to receive a majority of the votes” of active judges. It also noted that the order would be stayed for 90 days to enable proponents of Prop 8 to file an appeal to the U.S. Supreme Court.

The dissenting judges did not mince words in their three-paragraph dissent. They said the circuit panel’s 2-1 decision striking down Prop 8 was a “gross misapplication” of the U.S. Supreme Court’s decision in Romer v. Evans. In that 1996 case, the Supreme Court said states could not pass laws that excluded gays from protection based on animus against the group.

The dissenters said refusing to give full 9th Circuit review to Perry v. Brown means the Ninth Circuit judges “have now declared that animus must have been the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia.”

Proponents of Prop 8, known as Yes on 8, filed the appeal seeking review by the full 9th Circuit, asking it to overturn a decision by the panel in February. That panel decision found that California’s ban on same-sex marriage violates the U.S. Constitution by stripping from same-sex couples a right they had (to marry) prior to passage of Prop 8. In order for a limited full court review to have been granted, at least 14 of the circuit’s 26 active judges would have had to say another review is warranted.

The Perry v. Brown lawsuit is led by famed conservative attorney Olson and pre-eminent liberal attorney David Boies, and organized and funded by AFER.

In the case, two same-sex couples sued the state after being denied marriage licenses after the voter-approved constitutional ban on same-sex marriage went into effect in November 2008.

U.S. District Court Judge Vaughn Walker ruled, in August 2010, that banning same-sex couples from obtaining marriage licenses violates the U.S. Constitution’s guarantees of equal protection and due process. He agreed to delay enforcement of the decision, pending an appeal by Yes on 8 attorneys to the 9th Circuit.

In February 2012, a three-judge panel of the 9th Circuit, in a 2-1 vote, upheld Walker’s decision but on much more narrow grounds. The panel majority — Judges Stephen Reinhardt and Michael Hawkins — said Proposition 8 improperly removed from a group of citizens (gays) a right they already enjoyed (marriage) without sufficient justification.

Reinhardt and Hawkins submitted a paragraph with the June 5 refusal order, saying they were “puzzled” by their dissenting colleagues’ “unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion.”

“We,” said Reinhardt and Hawkins, “held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid. In line with the rules governing judicial resolution of constitutional issues, we did not resolve the fundamental question that both sides asked us to: whether the Constitution prohibits the states from banning same-sex marriage. That question,” they said, “may be decided in the near future, but if so, it should be in some other case, at some other time.”

The “particular circumstances” they referred to were that the California Supreme Court had ruled, in May 2008, that the state Constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. Thousands of couples did begin obtaining marriage licenses, but, in November of that year, voters approved Proposition 8, amending the state constitution to explicitly ban the recognition of same-sex marriage.

While attorneys and activists uniformly called the Feb. 7 panel decision a major victory, they acknowledged that the decision stopped short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, the decision said Prop 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’” If it had ruled same-sex couples had a fundamental right to marry, said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt….” And by rendering such a relatively narrow ruling, said Davidson and others, the panel reduced the likelihood the U.S. Supreme Court would take the case.

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

© 2012 by Keen News Service. All rights reserved.

—  John Wright

Experts say ruling narrowly crafted to avoid Supreme Court review

LISA KEEN  |  Keen News Service

Calling Proposition 8 “remarkably similar” to Colorado’s anti-gay Amendment 2 in 1992, a divided federal appeals court panel in San Francisco ruled today that California’s same-sex marriage ban violates the federal Constitution.

It was, noted many attorneys working on the issue of equal rights for LGBT people, the first time a federal appeals court has issued a decision in favor of marriage equality for same-sex couples. And it was, as lead attorney Ted Olson put it, “a very significant milepost on the way to equality.”

In a 2 to 1 decision in Perry v. Brown, the 9th U.S. Circuit Court of Appeals panel noted that the rights at issue in this landmark case concerning the ability of voters to withdraw the right to marry from same-sex couples in California was essentially the same as the ability of voters in Colorado, in 1996, to withdraw from LGBT people the protection of laws prohibiting discrimination.

“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,” noted the majority, “but new rights may not be stripped away solely because they are new.”

The California Supreme Court had ruled, in May 2008, that the state constitution required that same-sex couples be able to obtain marriage licenses the same as straight couples. But in November of that year, voters approved Proposition 8, an initiative that amended the state constitution to explicitly ban the recognition of same-sex marriage.

Quoting from the U.S. Supreme Court’s 2003 decision, Lawrence v. Texas, striking down laws barring sexual relations between same-sex partners, and referring to the 1967 U.S. Supreme Court decision, Loving v. Virginia, striking down bans on interracial marriage, the appeals panel noted that the “fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional attack.”

Olson and co-lead attorney David Boies said the Ninth Circuit panel’s heavy reliance on decisions from the U.S. Supreme Court makes the panel’s ruling “extremely strong.”

“There’s a high likelihood,” said Olson, in an afternoon phone conference with reports, “that the Supreme Court will find [Perry v. Brown] very hard to ignore.”

Olson and Boies made clear that they have always considered the case to be one headed for the U.S. Supreme Court. They said the Yes on 8 coalition which successfully campaigned for Proposition 8 has 14 days in which to announce whether it is appealing the decision and to where. The Yes on 8 coalition could ask for appeal to the full 9th Circuit bench or go straight to the U.S. Supreme Court. Until Feb. 28, said Olson, a stay on the 9th Circuit panel’s decision is in effect.

Olson said that, while he expects Yes on 8 to seek an extension of the stay beyond Feb. 28, his legal team would oppose that extension.

The highly anticipated ruling also rejected a motion from Yes on 8 proponents to vacate the district court ruling of former Chief Judge Vaughn Walker because Walker had not disclosed, prior to presiding over Perry v. Brown (known as Perry v. Schwarzenegger at the time), that he was in a long-term relationship with a man.

And while attorneys and activists uniformly called today’s decision a major victory, the appeals court panel did stop short of saying that same-sex partners, like straight partners, have a “fundamental right to marry.” Instead, it said Proposition 8 deprived same-sex partners only of the “right to use the designation of ‘marriage.’”

“We therefore need not and do not consider whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.”

“If the 9th Circuit had ruled that the fundamental right to marry protected by the Constitution is shared equally by same-sex couples,” said Lambda Legal Defense’s legal director Jon Davidson, “the marriage laws of 44 states would have been cast into doubt…” Such a broad ruling, he said, “in all likelihood would have resulted in Supreme Court review of the decision.”

“The fundamental right to marry, as protected by the US Constitution,” said Williams Institute legal scholar Jenny Pizer, “has to have the same contours throughout the country. So a decision concluding that same-sex couples have the same fundamental right as different-sex couples would call into question all the marriage restrictions states currently impose.”

An attorney on the Olson-Boies team said they think the 9th Circuit majority wanted to write as narrow decision as possible and minimize the likelihood that the Supreme Court would review the decision.

And, like the U.S. Supreme Court in the Colorado case, the 9th Circuit panel declined to examine whether it should apply the most stringent form of scrutiny — heightened scrutiny — to laws disfavoring gays and lesbians. Proposition 8, like Amendment 2, said the majority, failed to satisfy even the simplest rational level of review.

Walker, in his August 2010 decision, said Proposition 8 violated the federal equal protection clause because there was no rational basis for limiting the designation of marriage to straight couples. He also said it violated the federal due process clause because there was not compelling reason for the state to deny same-sex couples the fundamental right to marry.

The 2 to 1 majority opinion was written by Judge Stephen Reinhardt and joined by Judge Michael Hawkins. The partial dissent, by Judge Randy Smith, concerned the constitutionality of Proposition 8.

The majority said California’s Proposition 8 was more of a “surgical precision” attack than Colorado’s Amendment 2. Proposition 8, it said, attacked “one specific right: the right to use the designation of ‘marriage’ to describe a couple’s officially recognized relationship.”

The Ninth Circuit panel heard oral arguments concerning these key issues in the case in December 2010.

Yes on 8 attorneys argued during the January 2010 trial that the ban on same-sex marriage was justified because same-sex marriage would make children “prematurely preoccupied with issues of sexuality.”

Olson, arguing against Proposition 8, called that reasoning “nonsense” and said, “If believed, that would justify the banning of comic books, television, video games, and even conversations between children.” And during their 2008 campaign to pass Proposition 8, said Olson, Yes on 8 claimed the ban was justified to protect children from the idea that marriage between same-sex partners is OK.

As expected, the three-judge panel ruling agreed with a California Supreme Court ruling that Yes on 8, the coalition which successfully campaigned for the ban on same-sex marriage in 2008, did have legal standing to appeal Walker’s decision, even though state officials chose not to. The panel unanimously concluded it was “bound” by the state supreme court determination and that Yes on 8 did not “need not show that they would suffer any personal injury from the invalidation of Proposition 8” because “the State would suffer an injury….”

Kristen Perry, the lead plaintiff of the two couples challenging the law, said at a press conference today that the “dark walls of discrimination” are being dismantled. Her partner, Sandra Stier, spoke, as did one of their two sons who said, “With this ruling, in the eyes of the government, my family is finally normal.”

Plaintiff Paul Katami and his partner Jeffrey Zarrillo introduced Zarrillo’s parents, who have been married for more than 40 years.

Zarrillo’s father told the press conference that he was very proud of his son and his “soon-to-be son-in-law.”

Chad Griffin, head of American Foundation for Equal Rights (AFER), which has been funding the litigation against Proposition 8, dodged a question, asking him to comment on an effort underway, by a pro-marriage equality group, to overturn Proposition 8 through a ballot measure. But drew attention to attempts by opponents of same-sex marriage around the country who are trying such strategies as ballot measures and removing judges from office to overcome judicial rulings such as this one.

“We’re not at the end of the line yet,” said Olson, later in the press conference, “but I cannot overstate the importance of the decision today.”

© 2012 by Keen News Service. All rights reserved.

Here’s the full text of the decision:

Ninth Circuit Prop. 8 decision

—  John Wright