Flap's Blog – FullosseousFlap's Dental Blog

A federal appeals court on Tuesday declared California’s same-sex marriage ban to be unconstitutional, putting the bitterly contested, voter-approved law on track for likely consideration by the U.S. Supreme Court.

A three-judge panel of the 9th U.S. Circuit Court of Appeals ruled 2-1 that a lower court judge correctly interpreted the U.S. Constitution and Supreme Court precedents when he declared in 2010 that Proposition 8 was a violation of the civil rights of gays and lesbians.

It was unclear when gay marriages might resume in California. Lawyers for Proposition 8 sponsors and for the two couples who successfully sued to overturn the ban have repeatedly said they would consider appealing to a larger panel of the court and then the U.S. Supreme Court if they did not receive a favorable ruling from the 9th Circuit.

“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. There was no such reason that Proposition 8 could have been enacted,” the ruling states.

The panel also said there was no evidence that former Chief U.S. Judge Vaughn Walker was biased and should have disclosed before he issued his decision that he was gay and in a long-term relationship with another man.

The ruling came more than a year after the appeals court heard arguments in the case.

Proposition 8 backers had asked the 9th Circuit to set aside Walker’s ruling on both constitutional grounds and because of the thorny issue of the judge’s personal life. It was the first instance of an American jurist’s sexual orientation being cited as grounds for overturning a court decision.

Walker publicly revealed he was gay after he retired. However, supporters of the gay marriage ban argued that he had been obliged to previously reveal if he wanted to marry his partner — like the gay couples who sued to overturn the ban.

Walker’s successor as the chief federal judge in Northern California, James Ware, rejected those claims, and the 9th Circuit held a hearing on the conflict-of-interest question in December.

California voters passed Proposition 8 with 52 percent of the vote in November 2008, five months after the state Supreme Court legalized same-sex marriage by striking down a pair of laws that had limited marriage to a man and a woman.

The ballot measure inserted the one man-one woman provision into the California Constitution, thereby overruling the court’s decision. It was the first such ban to take away marriage rights from same-sex couples after they had already secured them and its passage followed the most expensive campaign on a social issue in the nation’s history.

The Williams Institute on Sexual Orientation and the Law, a think tank based at the University of California, Los Angeles, has estimated that 18,000 couples tied the knot during the four-month window before Proposition 8 took effect. The California Supreme Court upheld those marriages, but ruled that voters had properly enacted the law.

Here is the decision:

The 9th U.S. Circuit Court of Appeals is expected to release its opinion on the constitutionality of California’s voter-approved ban on same-sex marriage Tuesday morning.

The appeals court is deciding whether to uphold or reverse a federal judge’s 2010 ruling that Proposition 8, which was approved by voters in 2008, was unconstitutional. Regardless of the outcome, the decision is expected to be appealed to the United States Supreme Court.

The opinion will be posted online at 10 a.m, according to a press release from the court.

Judge Reinhardt and Judge Hawkins will probably vote to affirm Federal District Court Judge Vaughn Walker’s ruling that Proposition 8 is unconstitutional and that Walker did not need to recuse himself (obviously).

The decision will be stayed and the U.S. Supreme Court will take up the issue in the next term beginning in October 2012.

But, it does set up a contrast with President Obama (if Romney receives the GOP nomination) who has reversed “Don’t Ask, Don’t Tell” in the military and who has said to be “evolving” on the Gay Marriage issue – whatever that means.

Watch the gay community pressure Obama to come out in favor of gay marriage, which if he does will ruin him with his African American and Hispanic political bases.

Mitt Romney gains here with the conservative southern GOP base and with GOP Evangelicals who believe marriage should be between one man and one woman.

Americans’ views on same-sex marriage have essentially stayed the same in the past year, with a majority of 57% opposed to granting such marriages legal status and 40% in favor of doing so. Though support for legal same-sex marriage is significantly higher now than when Gallup first asked about it in 1996, in recent years support has appeared to stall, peaking at 46% in 2007.

Now, you know why the politicans, including President Obama, are not rushing to jump on the pro-gay marriage bandwagon. When talking about the institution of marriage Americans are not easily persuaded away from one man and one woman.

The California Supreme Court today upheld Proposition 8′s ban on same-sex marriage but also ruled that gay couples who wed before the election will continue to be married under state law.

The decision virtually ensures another fight at the ballot box over marriage rights for gays. Gay rights activists say they may ask voters to repeal the marriage ban as early as next year, and opponents have pledged to fight any such effort. Proposition 8 passed with 52% of the vote.

Although the court split 6-1 on the constitutionality of Proposition 8, the justices were unanimous in deciding to keep intact the marriages of as many as 18,000 gay couples who exchanged vows before the election.
The marriages began last June, after a 4-3 state high court ruling striking down the marriage ban last May.

The decision/opinion of the California Supreme Court is here.

In summary, we conclude that Proposition 8 constitutes a permissible constitutional amendment (rather than an impermissible constitutional revision), does not violate the separation of powers doctrine, and is not invalid under the “inalienable rights” theory proffered by the Attorney General. We further conclude that Proposition 8 does not apply retroactively and therefore that the marriages of same-sex couples performed prior to the effective date of Proposition 8 remain valid. Having determined that none of the constitutional challenges to the adoption of Proposition 8 have merit, we observe that if there is to be a change to the state constitutional rule embodied in that measure, it must “find its expression at the ballot box.” (In re Marriage Cases, supra, 43 Cal.4th 757, 884 (conc. & dis. opn. of Corrigan, J.); see also id. at pp. 861, 878 (conc. & dis. opn. of Baxter, J.).)

Just as Flap predicted before oral arguments in March.

So, off to the ballot, California is likely headed. But, whether it will be in 2010, 2012 or later is a matter of conjecture.

There are advanatges for gay marriage activists to push the issue into 2010. But, this is a California Governor election year where all of the Democrat candidates support gay marriage and the Republicans support civil unions/domestic partnerships with equitable rights. Will the Democrats who covet the Governorship, now held by Republican Arnold Schwarzenegger really want to run on the gay marriage issue?

Doubtful. And, the e-mail press releases from California Governor candidates are already flying into Flap’s e-mail box.

Yet, in 2012, President Barack Obama will be running for re-election which will again bring unprecedented numbers of African American voters to the polls. These voters supported California Proposition 8 in the last election by significant numbers.

The gay marriage proponents may then seek reddress in the courts since some homosexual couples are considered married and some who did not meet the deadline are not. But, this will be a slow, tedious process in the federal courts where a favorable outcome is not guaranteed for gay marriage.

Stay tuned……..

Previous:

Proposition 8 Aftermath: California Gay Marriage Backers Have Much to Do Before Returning to California Ballot

Poll Watch: Gay Marriage Evenly Splits Californians – Tough Race in 2010

California Supreme Court Appears to Be Ready to Uphold Constitutionality of Proposition 8

California Supreme Court Hears Oral Arguments on Proposition 8 Re: Gay Marriage Today

California Supreme Court to Hear Oral Arguments on Proposition 8 Case March 5