Ninth Circuit Reinstates Same-Sex Marriage in California

The 89-page opinion is written by Justice Steven Reinhardt, one of the court’s most liberal members and one of its most reversed by the Supreme Court.

He summarizes the three-judge panel’s two-to-one ruling as follows:

“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. 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.

“Proposition 8 therefore could not have been enacted to advance California’s interests in childrearing or responsible procreation, for it had no effect on the rights of same-sex couples to raise children or on the procreative practices of other couples. Nor did Proposition 8 have any effect on religious freedom or on parents’ rights to control their children’s education; it could not have been enacted to safeguard these liberties.

“All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and societal recognition of their committed relationships. 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. The Constitution simply does not allow for ‘laws of this sort.’ ” (Quoting the high court’s 1996 Romer v. Evans decision.)

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Reaction was swift and predictable:

 “The court has rendered a powerful affirmation of the right of same-sex couples to marry. I applaud the wisdom and courage of this decision,” said Gov. Jerry Brown.

“This is a stunning assault on democracy and California’s initiative process,” explained Karen England, executive director of Capitol Resource Institute and a key leader in the passage of Proposition 8.

“Well over 50 percent of California voters approved Proposition 8. Today their will was overturned by a panel of arrogant judges who want to impose their political agenda on the rest of us. We are confident that the traditional-and true-definition of marriage will be upheld by the Supreme Court.”

From Sen. Mark Leno, a San Francisco Democrat: “In today’s triumph, I hope our community finds renewed spirit and momentum to continue the important work of helping to ensure that all people receive the respect, dignity and validation they deserve.”

Noting the likelihood of an appeal to the US Supreme Court, Lt. Gov. Gavin Newsom, former mayor of San Francisco said that “while today marks a historic milestone towards equality for all Americans, our journey is not over until the highest court in the United States reaches the same decision that the Court of Appeals did today.

“It is on that day that the struggle for equality will be over and the dream on which this great nation was founded will become a reality.”

In his 39-page dissent (At the end of the majority opinion), Justice N. Randy Smith, named to the court in 2007, said he was ”not convinced that Proposition 8 is not rationally related to a legitimate governmental interest.”

He notes the court is charged with merely determining whether the law is constitutional and not whether it is ‘wise or sound as a matter of policy.’ (Quoting Strauss v. Horton, the 2009 California Supreme Court ruling upholding Proposition 8.)

Smith argues that for more than 130 years courts have granted states ‘the absolute right to prescribe the conditions upon which the marriage relation between its own citizens should shall be credited….” (Quoting Pennoyer v. Neff, an 1878 US Supreme Court ruling reaffirmed in 1975’s Sosna v. Iowa.) And, in conclusion, he writes, “the judiciary faces a conspicuous limit on our judicial role in applying equal protection to legislative enactments.”

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