Prop. 8: appeals courts set stage for Supreme Court review of gay marriage

An escalating showdown over gay rights in America appears to be heading inevitably to the US Supreme Court.

Two major appeals court cases dealing with same-sex marriage are poised for possible review at the nation’s highest court – perhaps with decisions as early as next year.

A federal appeals court in San Francisco announced on Tuesday that it would not examine a February decision striking down as unconstitutional California’s Proposition 8 ballot initiative, which effectively banned same-sex marriages in the state.

The action clears the way for lawyers to file an immediate appeal to the Supreme Court.

In addition, last week an appeals court in Boston struck down the federal Defense of Marriage Act, saying it violated the equal protection rights of same-sex married couples in Massachusetts.

Lawyers in that case have not yet announced whether they will seek further review at the appeals court in Boston or appeal directly to the Supreme Court in Washington.

The legal action comes a few weeks after President Obama announced his support for same-sex marriage. It also comes as public opinion polls show the nation divided over the issue, but with gradual increasing acceptance of the practice.

Eight states plus the District of Columbia recognize same-sex marriages. At least 28 states have constitutional amendments restricting marriage to a union between one man and one woman.


Legal analysts are divided over how likely the high court is to take up the gay rights cases. If the high court does enter the fray, scholars say the key vote may reside with Justice Anthony Kennedy.

Justice Kennedy is considered a swing voter on certain issues, and his swing vote proved important in two key gay rights decisions, the 1996 case Romer v. Evans, and the 2003 case Lawrence v. Texas.

Kennedy wrote the majority opinion in both cases. Romer invalidated a Colorado effort to eliminate and ban special legal protections enacted for the gay community.

Appeals court judges in both the California and Massachusetts cases used Kennedy’s Romer decision and its equal protection approach as the supporting structure for their analyses.

While Kennedy has not shied away from expanding gay rights in past cases, it remains unclear whether he is prepared to embrace same-sex marriage.

For example, in the 2003 Lawrence case, Kennedy added an important limitation on the scope of his ruling. “The present case,” he wrote, “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”


In the California case, lawyers supporting the 2008 ballot initiative had asked the Ninth Circuit Court of Appeals to examine whether a federal judge and a divided three-judge Ninth Circuit panel were correct when they ruled that the ballot measure violated provisions of the US Constitution.

In its order released on Tuesday, the appeals court said that a majority of active judges voted not to re-hear the case.

The action lets the earlier panel’s ruling stand. The court said the ban on gay marriage would remain in place in California for 90 days pending the filing of an appeal with the Supreme Court.

The court added that the ban would continue until the appeal was dismissed or decided by the high court.

Judge Diarmuid O’Scannlain issued a dissent to the court’s refusal to re-hear the Prop. 8 case. It was joined by Judges Jay Bybee and Carlos Bea.

Judge O’Scannlain said the appeals court panel had engaged in a “gross misapplication” of an underlying legal precedent.

“Even worse,” he said, “We have overruled the will of seven million California Proposition 8 voters based a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.”

The judge added: “We should not have so roundly trumped California’s democratic process without at least discussing this unparalleled decision as an en banc court.”

“En banc” is the term used to refer to the relatively rare circumstance of a full appeals court examining the decision of a three-judge panel. In the Ninth Circuit, en banc appeals are conducted by 11 of the court’s active judges.

Judge Stephen Reinhardt and Senior Judge Michael Hawkins issued a brief reply to O’Scannlain’s dissent. Both judges formed the two-judge majority that struck down Prop. 8.

“We held only that under the particular circumstances relating to California’s Proposition 8, that measure was invalid,” they said. “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.”

They added: “That question may be decided in the near future, but if so, it should be in some other case, at some other time.”


California’s Prop. 8 was adopted in November 2008 with 52 percent of the vote. It amended the California constitution by explicitly defining marriage as a union between one man and one woman.

The ballot initiative undercut a 4-3 decision by the California Supreme Court earlier in 2008. The state high court had determined that the California constitution recognized same-sex marriages.

During 143 days between the California Supreme Court decision and Prop. 8’s passage, some 18,000 same-sex couples were legally married in California.

After Prop. 8 restricted the definition of marriage, two same-sex couples sued in federal court, claiming the ballot initiative and state constitutional amendment violated their fundamental right to marry under the US Constitution.

A federal judge agreed, ruling in August 2010 that the ballot measure violated the constitutional right of same-sex couples in California to marry.

On appeal, Judges Reinhardt and Hawkins side-stepped the federal judge’s finding of a fundamental right to marry under the US Constitution. Instead, the judges ruled that Prop. 8 violated the equal protection rights of same-sex couples by withdrawing the right to marry under the California constitution after thousands of gay and lesbian couples had already been able to exercise that right.

In their brief to the Ninth Circuit urging the full court to review the case, lawyers for the Prop. 8 supporters said the appeals court panel’s ruling conflicts with decisions of “every other state and federal appellate court to address this question.”

Lawyers representing Prop. 8 opponents said the ballot initiative was passed for the express purpose of reinstating an “inferior status” for gay and lesbian relationships. They urged the appeals court not to re-hear the case, arguing that the decision was consistent with existing legal precedents.

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