Prop. 8 closer to high court after denial of rehearing
The prospect of a U.S. Supreme Court decision on same-sex marriage within the next year increased Tuesday when a federal appeals court, over an indignant dissent by conservative judges, reaffirmed its ruling that struck down California’s Proposition 8.
The Ninth U.S. Circuit Court of Appeals in San Francisco said a request by sponsors of the November 2008 ballot measure for a new hearing had failed to gain a majority vote among its 27 active judges. A panel of the court had declared the measure unconstitutional in a 2-1 decision in February.
Prop. 8, which amended the state Constitution to allow only opposite-sex couples to marry, remains in effect while the case is on appeal. Both sides — the gay and lesbian couples who challenged the law and the conservative religious organizations who defended it — said they expect it to reach the Supreme Court docket for the term that starts in October and ends in June 2013.
By next June, predicted Theodore Olson, a lawyer for the couples and the advocacy group American Foundation
for Equal Rights, the high court “will vindicate the rights of gays and lesbians to marriage equality in the United States.’’
Charles Cooper, lawyer for Prop. 8’s sponsors, said the rulings declaring the measure unconstitutional ignored Supreme Court precedents and “were little more than an attack on the character and judgment of millions of Californians” who voted for the ballot measure. He said he is confident the high court will take up the case.
Dissenters speak up
Similar views were voiced by three conservative Ninth Circuit judges who wanted the court to set the February ruling aside and order a new hearing before an 11-judge panel.
The decision to overturn Prop. 8 “trumped California’s democratic process” and unfairly found antigay bias to be “the only conceivable motivation for a sovereign state to have remained committed to a definition of marriage that has existed for millennia,” said Judge Diarmuid O’Scannlain, who was joined in his dissent by Judges Jay Bybee and Carlos Bea.
The Supreme Court decided its last gay-rights case in 2003, when it ruled that state prohibitions on private homosexual conduct were unconstitutional, but said it was not considering same-sex marriage.
Also awaiting high court review is last week’s ruling by another federal appeals court that declared unconstitutional the denial of federal benefits to married same-sex couples, an issue pending in a separate case before a Ninth Circuit panel in San Francisco.
The Prop. 8 case could provide the forum for a historic Supreme Court ruling on the right to marry. But the justices could also follow the lead of the Ninth Circuit panel, which focused on the California ballot measure and reserved the broader constitutional questions for another day.
The appeals court noted that Prop. 8, a state constitutional amendment, passed less than six months after the California Supreme Court ruled that existing laws against same-sex marriage violated the state charter’s guarantee of equality.
A middle ground
Finding that a ban on samesex marriage would do nothing to promote opposite-sex unions or protect children, the appeals court panel said Prop. 8 had withdrawn rights from a historically persecuted minority for no apparent reason except moral disapproval of homosexuality.
That approach could appeal to Justice Anthony Kennedy, whose vote is often crucial in closely divided Supreme Court cases.
Kennedy wrote both of the court’s rulings on sexual orientation: the 2003 decision on private sexual conduct and a 1996 decision overturning a Colorado ballot measure that would have banned local gayrights ordinances. Kennedy said the Colorado law had no conceivable basis except antigay prejudice, a conclusion echoed by the Ninth Circuit ruling on Prop. 8.
The appeals court panel appeared to be addressing Kennedy’s “inclination to rule in favor of sexual orientation equality but do so in an incremental way,” said Doug NeJaime, an associate professor at Loyola Law School in Los Angeles who teaches courses on law and sexuality.
If the high court takes up the case, NeJaime said, any ruling in favor of same-sex marriage is likely to be limited to California and other states that have withdrawn marital rights for gay and lesbian couples, rather than overturning the laws of all 44 states that now forbid same-sex marriage.
The Ninth Circuit dissenters also had a message for Kennedy. The ruling overturning Prop. 8 was a “gross misapplication” of the justice’s 1996 decision in the Colorado case, O’Scannlain said Tuesday.