Archive for Gay marriage

California’s Prop 8 Overturned by 9th Circuit U.S. Court of Appeals.

Here is the text of the landmark decision by the three judge panel at the 9th Circuit U.S. Court of Appeals.  http://www.emptywheel.net/wp-content/uploads/2012/02/Prop8-9thCircuitDecision.pdf

 In essence,  the Judges upheld the notion of equal protection status for same-sex couples deserving of constitutional protection.  I quote from the opinion:

We consider whether that amendment (Prop 8) violates the Fourteenth Amendment to the United States Constitution.  We conclude that it does.

The Judges go on:

Although the Constitution permits communities to enact most laws they believe to be desirable, it requires that there be at least a legitimate reason for the passage of a law that treats different classes of people differently.  The was no such reason that Proposition 8 could have been enacted.  Because under California statutory law, same-sex couples had all the rights of opposite-sex couples, regardless of their marital status, all parties agree that Proposition 8 had one effect only.  It stripped same-sex couples of the ability they previously possessed to obtain from the State, or any other authorized party, an important right- the right to obtain and use the designation of ‘marriage’ to describe their relationships.  Nothing more, nothing less….

All that Proposition 8 serves no prupose, and has no effect, other than to lessen the status of himan dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples.  The Constitution simply does not allow for ‘laws of this sort.’  Romer v. Evans, 517 U.S. 620, 633 (1996).

So, the question now is, “What happens next?”  Honestly, we are not sure.  It seems that marriages will still be banned pending either an appeal to the full appelate panel at the 9th Circuit or an appeal directly to the U.S. Supreme Court.  Some believe that because the issue is so narrowly crafted to address Prop 8 only and not some of the broader issues that is less likely that the U.S. Supreme Court will grant review.  It would seem from the opinion that the authors intended a narrow ruling  only applied to California.  Perhaps this was to discourage the Supreme Court’s involvment.  They write:

We need not and do not answer the broader question in this case, however, because California had already extended to same-sex couples both the incidents of marriage and the official designation of ‘marriage,’ and Proposition 8’s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents.  This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constutitionality on narrow grounds.

However, I think it very plausible that the more conservative Supreme Court may very well take it up to address specifically the equal protection question.  Namely, the broader question of whether same-sex couples are in a suspect class granting them equal protection under the Fourthteenth Amendment. 

No matter how you slice it though, supporters of same-sex marriage got a significant victory where a U.S. Appelate court held that a ban of same-sex marriage violates the Fourteenth Amendment to the U.S. Constituion– even if it was a narrow holding.  That really is a big deal.

Court: No gay marriages in CA during appeal

It seems that the gay marriage litigation will continue.  The ninth circuit court of appeals refused to allow same-sex marriages to take place in California while it considers the constitutionality of the current state ban.  I imagine that the 9th Circuit, no matter what it decides, will not have the last word on this issue.  I see it going all the way to the Supreme Court of the United States.  Whatever happens, it will have far reaching effects on the practice of family law in California.

See the San Diego 6 report: Court: No gay marriages in CA during appeal.

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