By Howard Mintz /MercuryNews.com / February 7, 2012
A federal appeals court on Tuesday struck down Proposition 8, finding that California’s ban on same-sex marriage is unconstitutional because it deprives gay and lesbian couples of the equal right to wed.
With a decision that pushes the gay marriage issue a step closer to the U.S. Supreme Court, the 9th U.S. Circuit Court of Appeals upheld former San Francisco Chief U.S. District Judge Vaughn Walker, who invalidated Proposition 8 in 2010 after conducting an unprecedented trial.
“Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples,” Judge Stephen Reinhardt wrote, joined by Judge Michael Daly Hawkins.
Judge N. Randy Smith dissented, saying there were “legitimate governmental interests” in restricting the definition of marriage to a union between a man and woman.
Proposition 8 backers can now ask the 9th Circuit to rehear the case with an 11-judge panel, or proceed directly to the Supreme Court. Smith’s dissent could be a strong indicator there will be some support within the court to take a second look at the case.
The appeals court also rejected the argument that Walker’s ruling should be scrapped because he did not disclose he was in a long-term same-sex relationship while he was handling the case. Smith joined in that part of the ruling.
As a result of the continued legal wrangling, same-sex marriages are not expected to resume in California any time soon, with further appeals likely to stretch at least into next year.
In the ruling, Reinhardt, considered one of the nation’s most liberal judges, relied heavily on the U.S. Supreme Court’s 1996 decision striking down a Colorado law that stripped gays and lesbians of protections against discrimination there.
The appeals court’s ruling marks another setback for gay marriage opponents, who passed Proposition 8 in 2008 by a 52 to 48 percent margin.
Proposition 8 restored California’s gay marriage ban, trumping a state Supreme Court ruling earlier in 2008 that had invalidated California’s prior laws forbidding same-sex nuptials.
Backed by gay rights advocates and the city of San Francisco, two gay couples sued to overturn Proposition 8 in 2009, openly describing the case as an opportunity to force the U.S. Supreme Court to take on the gay marriage issue.
Kristin Perry and Sandy Stier, a Berkeley couple, signed on to the lawsuit, which was crafted by two of the nation’s top lawyers, David Boies and former U.S. Solicitor General Theodore Olson.
The legal challenge has not affected the roughly 18,000 couples who married in the window of time before voters restored the gay marriage ban, creating a two-tiered system of relationships for gay and lesbian couples in California. Gay rights advocates argued that the circumstances underscored the legal weakness in outlawing same-sex marriage, but Proposition 8 supporters disagreed, saying the state’s strong domestic partner protections are sufficient.
Lawyers for same-sex couples relied primarily on the argument that Proposition 8 violates federal equal protection rights, saying the law has no social or legal basis other than a discriminatory intent against gays and lesbians. Proposition 8’s supporters argued that voters had an interest in preserving the traditional definition of marriage and its importance in procreation.
The 9th Circuit heard arguments in the case in December 2010, but put off a decision to let the California Supreme Court decide whether Proposition 8 supporters have a legal right to defend the law when the state’s top elected officials refuse to do so.
The state Supreme Court ruled last year that Proposition 8 backers do have that right, returning the case to the 9th Circuit.
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