Tuesday, February 7, 2012

Last Call

A three-judge panel of the 9th Circuit struck down California's Prop 8 ban on gay marriage today, in a ruling that's expected to almost immediately be appealed to the US Supreme Court.  Lyle Denniston at SCOTUSblog:

Dividing 2-1, the Ninth Circuit Court on Tuesday struck down “Proposition 8,” the ban on same-sex marriage adopted by California voters in November 2008.  The panel majority did not uphold a broad right of gay couples to wed, saying it was enough for now to rule that it was unconstitutional to take away a right to marry only for one minority group.   The 133-page ruling can be read here.

The panel unanimously ruled that the sponsors of Proposition 8 had a legal right to be in the appeals court to challenge a federal District judge’s ruling in 2010 striking down the ballot measure, but also rejected the sponsors’ plea to wipe out that ruling on the theory that the trial judge had a conflict of interest because he is gay and is in a long-term relationship with another man.

The majority summed up its ruling this way: “By using their initiative power to target a minority group and withdraw a right that it possessed, without a legitimate reason for doing so, the people of California violated the Equal Protection Clause [of the federal Constitution].  We hold Proposition 8 to be unconstitutional on this ground.”

It added: “We do not doubt the importance of the more general questions presented to us concerning the rights of same-sex couples to marry nor do we doubt that these questions will likely be resolved in other states, and for the nation as a whole, by other courts.  For now, it suffices to conclude that the people of California may not, consistent with the federal Constitution, add to their state constitution a provision that has no more practical effect than to strip gays and lesbians of their right to use the official designation that the state and society give to committed relationships, thereby adversely affecting the status and dignity of the members of a disfavored class. The judgement of the district court is confirmed.

So no new arguments or major surprises here.  The panel upheld Judge Vaughan Walker's ruling and his argument that singling out gay and lesbian couples for the express purpose of denying them rights violated the Constitution's Equal Protection Clause.  They also threw out the patently ridiculous argument that being gay himself disqualified Judge Walker from making the decision in the first place, any more than being married (or divorced) should disqualify a judge from a divorce proceeding, for example.

In other words, this is a speed bump on the way to SCOTUS.  The ruling doesn't substantively change much of anything.  For now, the ruling vacating Prop 8 will almost certainly be stayed in light of the 99.9999% chance of this being appealed to the Supreme Court (unless for some reason this goes before an en banc full panel of the 9th Circuit instead...but I don't see the pro-Prop 8 side doing that, they want to go for all the marbles instead of getting a similar decision.)

Whether or not the case would be heard before or after this coming election, I couldn't tell you.  But the implications of a Supreme Court ruling on Prop 8 would be broad.  It could strike down such bans in dozens of states...or make them all but permanent should they decide in favor of keeping it.  It's also entirely possible that SCOTUS could punt and effectively say it was a state's rights issue, keeping the status quo in other states but opening same-sex marriage in California.  It's also possible that SCOTUS could make a broad ruling striking down the federal DOMA ban as well as the state ones, clearing the way for federally recognized same-sex marriage in all 50 states.

I honestly don't know how this will fall out, only that SCOTUS will certainly get a crack at this and soon.

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