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|Appeals court: Same-sex marriage ban ‘serves no purpose’ except bias|
|by Laura Douglas-Brown|
|February 16, 2012 23:34|
Proposition 8, the ballot initiative that ended same-sex marriage in California, is unconstitutional, a panel of the Ninth Circuit Court of Appeals ruled Feb. 7.
“We consider whether that amendment violates the Fourteenth Amendment to the United States Constitution,” the ruling states. “We conclude that it does.”
The ruling goes on to note that, contrary to the arguments of Proposition 8 defenders, the measure “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.”
Noted the court, “Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California.”
The ruling, from a three-judge panel of the appeals court, could be appealed to either an 11-judge panel of the appeals court or directly to the U.S. Supreme Court, which could decide to hear the case or let the lower court ruling stand.
The court noted in the ruling that a stay on further same-sex weddings in California remains in effect.
The National Center for Lesbian Rights, which filed a court brief against Prop. 8, noted that the case is likely far from over.
“The supporters of Prop 8 have 15 days to ask the Ninth Circuit panel to reconsider its decision or to ask for reconsideration by a larger panel of judges on that court,” NCLR said. “Alternatively, they have 90 days to request that the Supreme Court of the United States review the case.”
Long battle for equality in Calif.
The California Supreme Court ruled in 2008 that banning same-sex couples from marriage violated the state constitution. More than 18,000 gay couples were married in California before voters repealed same-sex marriage rights in November 2008.
The California Supreme Court upheld the amendment, but the American Foundation for Equal Rights filed a federal lawsuit challenging the constitutionality of Proposition 8, led by high-profile attorneys Ted Olson and David Boies. The controversial case, filed as Perry vs. Schwarzenegger and now known as Perry vs. Brown, is widely expected to eventually reach the U.S. Supreme Court.
The gay marriage advocates won the first round, when U.S. District Chief Judge Vaughn R. Walker ruled in August 2010 that the state’s ban on same-sex marriage was unconstitutional.
“Proposition 8 singles out gays and lesbians and legitimates their unequal treatment,” Walker ruled, noting that it “perpetuates the stereotype that gays and lesbians are incapable of forming long-term loving relationships and that gays and lesbians are not good parents.”
Then-Gov. Arnold Schwarzenegger and then-Attorney General Jerry Brown refused to challenge Walker’s ruling, but backers of the ballot initiative — called Protect Marriage — appealed the decision to the Ninth Circuit Court of Appeals. Brown is now governor of California.
A three-judge panel of the federal appeals court — made up of Judges Stephen Reinhardt (appointed by President Carter), Randy Smith (appointed by President George W. Bush) and Michael Hawkins (appointed by President Clinton) — heard arguments in the case on Dec. 6, 2010.
The federal panel then asked the California Supreme Court to weigh in on whether the ballot measure backers had standing to defend Proposition 8.
The California high court ruled unanimously in November 2011 that the backers could defend the case. The Ninth Circuit panel agreed that the sponsors of Proposition 8 were entitled to defend it.
Backers of Proposition 8 also asked that Walker’s ruling be thrown out because Walker came out as gay and in a longterm relationship after he retired.
U.S. District Court Chief Judge James Ware ruled against the claim, noting that gay judges are “entitled to all the presumptions about impartiality and fairness as other judges,” but the Prop 8 backers appealed that decision to the Ninth Circuit Court of Appeals as well.
In the Feb. 7 decision, the appeals court agreed that Walker’s ruling should stand. The panel also directly addressed the claim that allowing same-sex couples to marry somehow harms the institution of marriage for heterosexuals.
“It is implausible to think that denying two men or two women the right to call themselves married could somehow bolster the stability of families headed by one man and one woman,” the court wrote.
‘The tide is not turning; it has turned’
The ruling drew quick praise from LGBT rights advocates.
“There are days in our nation’s history when genuine progress toward our goal of forming a more perfect union is realized. Days when America’s founding promise, that all men and women are created equal, is once again fulfilled,” noted the American Foundation for Equal Rights, which brought the case, in a press release Feb. 7. “Today is one of those days.”
NCLR Executive Director Kate Kendell called the ruling a “giant step.”
“With today’s ruling we are a giant step closer to the day when the promise of our Constitution squares with the lived reality of LGBT people,” she said.
Lambda Legal, which joined NCLR and other pro-gay groups in the friend-of-the-court brief in favor of same-sex marriage rights, called the ruling a “momentous victory.”
“The tide is not turning; it has turned; and we are glad to see the Ninth Circuit join the right side of history,” noted Jon Davidson, the group’s legal director.
The anti-gay National Organization for Marriage sent out an “urgent” fundraising appeal shortly after the ruling, asking gay marriage opponents to help raise $100,000 in a week to help take the case to the Supreme Court.
“This sets up an all-or-nothing showdown at the United States Supreme Court,” NOM Education Fund Executive Director Brian Brown said in the fundraising appeal, asking for money to help stop “same-sex marriage radicals in their campaign to force gay marriage on the entire nation in one fell swoop.”
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